Tag: news

This Judge Is Wrong About Economic Liberty and the Constitution 

topicslaw

In his May dissent in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania, Pennsylvania Supreme Court Justice David Wecht berated his colleagues for letting a legal challenge proceed against a state occupational licensing scheme. “I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations.

The Pennsylvania Supreme Court, Wecht complained, is now living in its “own Lochner era”—a reference to a 115-year-old U.S. Supreme Court decision, Lochner v. New York, which struck down a state regulation on the grounds that it served no valid health or safety purpose and violated the economic liberty protected by the 14th Amendment. “For many years, and under the pretext of protecting ‘economic liberty’ and ‘freedom of contract,’ the Supreme Court routinely struck down laws that a majority of the Court deemed unwise or improvident,” Wecht wrote. “Most now recognize that those decisions had nothing to do with the text or history of the Constitution.”

Wecht should read more history, starting with the speeches of the late Rep. John Bingham (R–Ohio). In 1866, Bingham served as the principal author of Section 1 of the 14th Amendment, which, among other things, forbids states from passing or enforcing laws which violate the privileges or immunities of citizens. As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”

That view was widely shared by those who framed and ratified the 14th Amendment. Even those who opposed the amendment’s passage did so because they knew it was designed to protect economic liberty from overreaching state regulation. Rep. Andrew Jackson Rogers (D–N.J.), for example, complained to the House in 1866 that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities,” including “the right to contract.” He continued: “I hold if that ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody embraced under this term of privileges and immunities.”

Contrary to Wecht’s flawed assertion, economic liberty most certainly does have something to do with the text and history of the Constitution.

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One Cheer for Supreme Court Term Limits

One of the more focal level-headed proposals for Supreme Court reform is imposing 18-year term limits with guaranteed rotation in office every two years. I share the view that this probably would need to be done by constitutional amendment. But in my view that is not a major drawback, and a constitutional amendment could also fix the number of Supreme Court Justices at the same time, which is probably a good idea at this point.

Instead, I worry about this proposal on the merits. I have two major concerns, neither of which were covered in Jonathan’s recent post.

The final-period problem. If Supreme Court Justices will no longer hold their jobs for as long as they are healthy and interested, then they will probably start holding other jobs after they are Supreme Court Justices. This risks changing their behavior. There will be a natural tendency to start auditioning for one’s next job. And regardless, the sitting Justices will lose some of their current incentives to invest in their own judicial reputation as judges.

(And in standard game theory, this naturally unravels. In their last year on the bench, the Justice realizes they’ll never be a Justice again, so they may as well seize the day. In the next to last year, they realize they’ll be seizing the day next year, so they may as well start this year. In the next to next to last year, they do the same thing, and so on.)

Whether this is a big deal or not depends on what kinds of norms and incentives you think govern the Justices. But I think that a lot of what makes the Court function as well as it does is a shared commitment to judicial craft among the Justices. People who think the Court is already 100 percent political have a great failure of imagination.

Note that this problem is not solved by, say, banning ex-Justices from litigating before the Court, or even by banning them from practice law. Even if they aren’t commercial litigators, ex-Justices might take other jobs for commercial interests. Or work at think tanks, become media personalities, run for public office or even try to enter academia. All of these paths create temptations to suck up to one’s future constituency. Corruption comes in many guises.

Nor is this problem solved by appointing Justices who are old enough that they likely won’t have the energy or interest in another job after service on the Court. Too old, and there is too much of a risk they won’t finish their term, which undermines the proposal. Younger Justices will finish their terms, but then they are likely to want to do something else.

When an institution is held together by norms, one must be very careful about the law of unintended consequences.

The appointment problem. Second, the term limits proposal doesn’t solve the more pressing problem, which is the deterioration of norms for Supreme Court appointments. For instance, nothing in the nature of term limits stops a future opposition Senate from simply refusing to confirm any judicial nominees until their party is in the presidency.

So any term limits proposal will likely also need additional reforms to the appointments process. Possibilities include: giving the President unilateral appointment authority if the Senate doesn’t behave properly; giving some third party appointment authority if the President and Senate don’t agree; allowing the ex-President or his party to hold on to appointment authority even after four or more years have passed; or (my favorite) requiring that the President and Senate should be “confined together until a nominee has been approved.”

Maybe some of these reforms would work. But all of them would transform the current dynamics of Supreme Court appointments, probably more dramatically than the term limits themselves. And they have not received the same degree of intellectual vetting or bipartisan agreement as term limits. It ends up being an afterthought.

When your institutional reform both upends existing institutional norms, and requires more dramatic secondary institutional reforms in order to work, there is reason to worry. So for both of these reasons, I think a term limits amendment is a bad idea on the merits.

A placebo effect? On the other hand, there is one important thing to be said in favor of Supreme Court term limits: there are so many other ideas for Supreme Court reform that are worse. Term limits will probably have only a modestly nefarious effect, many other proposals are more nefarious or more chaotic. Maybe it would displace the worse ideas.

Moreover, at the moment Supreme Court term limits seems to be perceived as a relatively level-headed, non-partisan, good-government attempt to do something about the Court. So maybe the political movement that would be needed to pass such an amendment would itself help transform our institutional norms in a healthy way. In other words, a term limits amendment might help not because it is a good idea, but because it is widely believed to be a good idea.

This may sound like faint praise, and in a way it is. But I worry that escalation over the Court will soon become unsustainable. And I am especially worried because I see smart people on both sides of the aisle who seem to think it is all the other side’s fault. That is not a recipe for de-escalation, and we may need one soon.

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This Judge Is Wrong About Economic Liberty and the Constitution 

topicslaw

In his May dissent in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania, Pennsylvania Supreme Court Justice David Wecht berated his colleagues for letting a legal challenge proceed against a state occupational licensing scheme. “I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations.

The Pennsylvania Supreme Court, Wecht complained, is now living in its “own Lochner era”—a reference to a 115-year-old U.S. Supreme Court decision, Lochner v. New York, which struck down a state regulation on the grounds that it served no valid health or safety purpose and violated the economic liberty protected by the 14th Amendment. “For many years, and under the pretext of protecting ‘economic liberty’ and ‘freedom of contract,’ the Supreme Court routinely struck down laws that a majority of the Court deemed unwise or improvident,” Wecht wrote. “Most now recognize that those decisions had nothing to do with the text or history of the Constitution.”

Wecht should read more history, starting with the speeches of the late Rep. John Bingham (R–Ohio). In 1866, Bingham served as the principal author of Section 1 of the 14th Amendment, which, among other things, forbids states from passing or enforcing laws which violate the privileges or immunities of citizens. As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”

That view was widely shared by those who framed and ratified the 14th Amendment. Even those who opposed the amendment’s passage did so because they knew it was designed to protect economic liberty from overreaching state regulation. Rep. Andrew Jackson Rogers (D–N.J.), for example, complained to the House in 1866 that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities,” including “the right to contract.” He continued: “I hold if that ever becomes a part of the fundamental law of the land it will prevent any State from refusing to allow anything to anybody embraced under this term of privileges and immunities.”

Contrary to Wecht’s flawed assertion, economic liberty most certainly does have something to do with the text and history of the Constitution.

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Beijing Slaps Sanctions On Raytheon, Lockheed & Boeing In Retaliation For Taiwan Arms Sales

Beijing Slaps Sanctions On Raytheon, Lockheed & Boeing In Retaliation For Taiwan Arms Sales

Tyler Durden

Mon, 10/26/2020 – 05:49

As President Trump and VP Mike Pence (recent COVID-19 infections be damned) fan out across the country for a last-minute pre-Election Day push to get out the vote, Beijing is adding to its long-promised retaliation for TikTok, the Xinjiang sanctions, all President Trump’s COVID-19-related China bashing and – most importantly – Taiwan.

After Beijing sanctioned Lockheed Martin over its involvement in “Torpedoes for Taiwan”, the CCP is following up with more economic attacks on American defense contractors, guaranteeing that the Chinese response, and its attendant economic impact, will be elevated to an important talking point and – more importantly – another risk factor for already-uneasy markets, struggling to digest the political uncertainty combined with new record numbers of COVID-19 cases in the US and Europe.

According to Reuters, Beijing has decided to impose sanctions on Boeing’s defense unit, Raytheon and (again) Lockheed. The news was announced by Ministry of Foreign Affairs spokesman Zhao Lijian. He didn’t elaborate on what the sanctions will entail.

The sanctions come as the State Department approves the sale of three weapons systems to Taiwan, including sensors, missiles and artillery worth some $1.8 billion as the Trump Administration throws caution to the wind and goes all-in on beefing up Taiwan’s defense capabilities, even as Beijing adopts increasingly belligerent rhetoric about the “red line” that is Taiwan.

“To safeguard our national interests, China decided to take necessary measures and levy sanctions on U.S. companies such as Lockheed Martin, Boeing Defence, and Raytheon, and those individuals and companies who behaved badly in the process of the arms sales,” he said.”

Though it’s not the “just war” China has promised, it’s possible that US equities could take a hit if we hear more concrete details from the Chinese. Markets wobbled after China announced its last round of sanctions against Lockheed, though whatever Beijing did, it doesn’t look like it had much immediate impact on Lockheed’s bottom line, according to its latest earnings report, released roughly a week ago.

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The More The EU Tightens Its Grip, The More Countries Slip Through Its Fingers

The More The EU Tightens Its Grip, The More Countries Slip Through Its Fingers

Tyler Durden

Mon, 10/26/2020 – 05:00

Authored by Tom Luongo via Gold, Goats, ‘n Guns blog,

It finally looks like the four-and-a-half-year saga of Brexit is coming to an ignominious end. British Prime Minister Boris Johnson called the final bluff of the incompetent bureaucrats in Brussels, walking away from trade talks while leaving the door open.

But that door is only open if the EU is willing to crawl in on its knees and give the UK what it wants, a minimal free trade deal, Canada-style, which was offered by then President of the European Council Donald Tusk.

The EU played hardball giving zero ground for four years while undermining the UK from within its own political and bureaucratic structures. It was as transparent as it was cynical, but it couldn’t sway the British people and that gave Johnson the political will to just say no.

And it was this hardball negotiating stance that had worked in the past finally broke like waves along the Cliffs of Dover. The reason why it failed was that arrogance was fueled by powerful forces having their back,

They believed in the power of coercion being stronger than the will of the British people.

And they were wrong. Dead wrong.

In an instant this past weekend the entire façade of he the EU’s inevitability vaporized as Johnson went on TV and told the world to prepare for a No-Deal Brexit, regardless of whether that was the optimal outcome or not.

It signaled to the rest of Europe that no longer do you have to take the diktats of a bunch of feckless, unelected technocrats if you don’t want to. And this failure to secure submission of the Brits will have immense consequences during this next election cycle in Europe.

This is why the fiction of the Second Wave of the Coronapocalypse persists all across the continent. Germany, France, Spain and other countries are implementing the worst kind of draconian lockdowns on people hanging on by a thread while the pols in Brussels scheme as to how best to continue advancing their plans for a future with the people trapped in the neo-feudalism of the EU corporatocracy.

These lockdowns have nothing to do with public health. They have everything to do with maintaining the political health of the current ruling classes. Nothing more.

And I include the UK in this as well but for different reasons. It’s my feeling that even though Johnson may have given the EU ‘two fingers up’ the EU and those behind it aren’t done with the Brits yet.

Walking away from narcissists inevitably invokes anger. There is too much at stake for the European Project for the annoying Brits to just walk away from it and give everyone else the wrong idea.

So, I feel very strongly we should be watching for more signs of the same color revolution tactics on display in the U.S. to depose Donald Trump showing up in the UK. I don’t rule out an attempted coup against Johnson in the next seven weeks.

This is why I think he’s imposing similar lock downs in the UK to manage the inevitable activation of ‘ground forces’ once things get down to the wire later this year.

Brexit has exposed a myriad of fault lines within the EU, most notably between the two heavyweights, Germany and France. And Johnson, for all his shambolic organization, understood this perfectly, playing Angela Merkel and Emmanuel Macron off each other capturing their agendas in amber so when crunch-time came, they were paralyzed with inaction.

Weasels on both sides of the channel refused to accept the vote for any number of reasons but it didn’t matter.

The UK always had the upper hand in this situation if it stood its ground, made its demands known and negotiated like an equal rather than a wayward child.

Ever the abusive parent, the EU Council and its Chief Negotiator continue to treat the Brits like they treated Greece in 2015 and are now openly furious that no one is taking them seriously.

But why should anyone take Brussels seriously, other than because it is backed by the failing and sclerotic post-WWII institutions revealed to be complicit in the wholesale destruction of Western culture and economic vitality who are pushing a Great Reset on them whether they want it or not?

One need look no further than the insipid way Merkel has handled the obvious intelligence job surrounding Russian opposition figure Alexei Navalny. Navalny is a nobody outside the halls of the CIA and MI-6 who, through the media, sell him to the West as a major thorn in Russian President Vladimir Putin’s side.

But he’s nothing of the sort. He has fewer people show up to his ‘rallies’ now than Joe Biden. So, the idea that Putin would poison this bozo is laughable. And yet, because the EU, and specifically Germany, are so scared of angering the U.S. they entertained this fantasy hoping the Russians would bail them out and play along with the fiction, publicly threatening the completion of the Nordstream 2 pipeline over it.

Putin told Merkel to go scratch, and why not? She’ll be out of the picture in a year.

So, now she has personally lost Russia as a potential ally for Germany. Instead of finally choosing a side, Merkel, ever the dutiful soldier, kept playing the U.S. and Russia off each other alienating both.

Germany will get no help from Russia when a vindictive second-term Trump tightens the screws on her even more. Because stop looking at polls designed to gaslight you and look at what’s happening in the U.S. People will walk over broken glass to vote for Trump. The biggest worry about Biden is whether he’ll soil his Depends.

Merkel ham-fistedly played for time hoping to run out the clock on Trump and Johnson both over the U.S. election and it will cost Germany everything in the long run. She has a chance post-election to make things right with Putin but don’t bet on it.

Once she loses Russia, she’ll lose the Visegrad nations as the U.S. abandons Europe and the 21st century will turn most unkind on a hubristic and vainglorious European elite.

If the EU leadership want to be taken seriously then they need to act like world leaders and not like a bunch of vindictive high schoolers vying for class president. That these incompetent people are leading some of the most powerful countries in the world should frighten you.

They also reflect very poorly on the people who stand behind them, who I like to call The Davos Crowd, whose policies they were chosen to implement.

And now that the best of all possible Brexits is near at hand, the rest of Europe is going to get an object lesson in just how much it costs to keep them around as the UK thrives in the post-Brexit world and why they shouldn’t be afraid of the EU’s wrath.

via ZeroHedge News https://ift.tt/2Hr9XXe Tyler Durden

Brickbat: Genghis Who?

genghiskhan_1161x653

The Château des ducs de Bretagne museum in France has postponed an exhibit on Genghis Khan and the Mongol Empire, citing what it says is censorship by the Chinese government. The exhibit was being put together with the Inner Mongolia Museum in Hohhot, China. But the Chinese Bureau of Cultural Heritage began to demand control over the exhibit, demanding that certain words and phrases, including “Genghis Khan,” “Empire,” and “Mongol” be removed and asking for control over exhibition brochures and maps. Museum officials say they believe the demands are linked to the Chinese government’s crackdown on ethnic minorities, including Mongols.

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Brickbat: Genghis Who?

genghiskhan_1161x653

The Château des ducs de Bretagne museum in France has postponed an exhibit on Genghis Khan and the Mongol Empire, citing what it says is censorship by the Chinese government. The exhibit was being put together with the Inner Mongolia Museum in Hohhot, China. But the Chinese Bureau of Cultural Heritage began to demand control over the exhibit, demanding that certain words and phrases, including “Genghis Khan,” “Empire,” and “Mongol” be removed and asking for control over exhibition brochures and maps. Museum officials say they believe the demands are linked to the Chinese government’s crackdown on ethnic minorities, including Mongols.

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Watch: Furious Welshman Tears Down Sheeting Off “Non-Essential” Goods In COVID-Lockdown Protest

Watch: Furious Welshman Tears Down Sheeting Off “Non-Essential” Goods In COVID-Lockdown Protest

Tyler Durden

Mon, 10/26/2020 – 03:30

Authored by Paul Joseph Watson via Summit News,

A video out of Wales shows a furious shopper in a branch of Tesco tearing away plastic sheeting used to cover “non-essential” goods while decrying a COVID lockdown that is robbing people of “basic human needs.”

As we highlighted yesterday, photos began emerging of bedding and other supermarket items deemed “non-essential” being covered with plastic sheeting to prevent people in Wales from buying them.

Now a new video has emerged of an irate Welshman tearing down similar sheeting in a branch of Tesco in Bangor last night.

“Since when have clothes been exempt?, rip the f***ers off… kids’ f***ing clothes, it is a disgrace,” said 28-year-old Gwilym Owen as he tore away the sheeting.

“All you need to do is don’t comply and take them off,” he added as he continued to remove the protective covering.

After a member of security approached Owen, he responded, “‘Since when has clothing not been essential?”

At the end of the clip, other members of staff appear to try to take the cameraman’s phone away from him while he is recording.

Owen subsequently explained his actions on Facebook, noting that he didn’t care about the backlash because he had “had enough” of the restrictions.

‘I heard supermarkets have put covers over ‘non essential’ things such as clothes. We’re heading into winter now and who would have thought clothes for children weren’t essential?’

‘I’m sure there are people out there who can barely afford heating in their houses and now they want to stop people buying clothes in supermarkets.

‘I don’t expect everyone to do what I’ve done here but I do expect everyone to know that denying the public clothing is nothing but immoral and inhuman.

‘So no I’m not ashamed of what I’ve done.

‘I’m not prepared to live in a society where they can take basic human needs away like being able to buy new clothes, especially for children. So I’ll do what I can to stop it.

‘I’ve had it up to my tether with what’s going on and we need more people to take a stand for.

Tesco responded by saying they had been ordered by the government to cover up the items.

Residents of Wales are currently under a ‘Tier 3’ lockdown, which means people are being urged to stay at home, must not visit other households, while pubs, restaurants, gyms, churches and shops deemed “non-essential” are all closed.

The new lockdown, ludicrously referred to as a “circuit breaker,” will be imposed for 17 days and is expected to further wreck the Welsh economy.

*  *  *

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