Posting This Because I Thought no one Would See It – Quoting Somin

Volokh Conspiracy readers may be interested to see videos of two panels I participated in at this year’s recently concluded Federalist Society National Lawyers Convention: “The Wisdom and Legality of Sanctuary Cities” and “Originalism and Constitutional Property Rights.”

In the sanctuary cities panel, I crossed swords with former Attorney General Jeff Sessions, among others, and explained why the Trump administration’s attacks on sanctuary cities violate constitutional limits on federal power, and have—fortunately—led to a long series of defeats in court, at the hands of both liberal and conservative judges. I also described why sanctuary jurisdictions have good policy and moral reasons for refusing to cooperate with some aspects of federal immigration enforcement, including the fact that involving local police in immigration enforcement undercuts ordinary law enforcement. Sanctuary jurisdictions are also justified in rejecting cooperation with federal deportation efforts, given the horrific abuses in its immigration detention facilities, and the government’s history of wrongfully detaining and deporting even US citizens.

At the property rights panel, I discussed and debated the original meaning of constitutional protections for property rights with distinguished takings scholars Tom Merrill (Columbia), Richard Lazarus (Harvard), and my George Mason University colleague Eric Claeys.  I argued that the original meaning of the Takings Clause requires judicial enforcement of tight limits on government power to take property for “public use,” a concept which should be given a narrow construction encompassing only publicly owned projects, while excluding most condemnations that transfer property to private parties. My talk was in large part based on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

On the property rights panel, I advocated what might be seen as a right-wing position (defending strong constitutional protection for property rights). On the sanctuary cities panel, I defended what is usually considered a  “left-wing” perspective on sanctuary cities. But, despite the seeming contradiction, I think there is actually an underlying coherence between the two positions: both advocate strong judicial enforcement of constitutional limits on government power, and both protect poor and vulnerable populations against the sometimes overwhelming power of the state.

Of course this year’s Federalist Society Convention will probably be best remembered for Attorney General William Barr’s seriously flawed speech extolling an extraordinarily broad theory of executive power. Among other things, he ignores the many ways in which executive power has grown far beyond the Founders’ design and argues for near-total judicial (and often also congressional) deference to the president on anything involving “foreign relations” and “exigent circumstances.” This is a misreading of the Constitution, and such deference has historically led to grave abuses of power. If time permits, I may have more to say on Barr’s speech later.

Hump Day Craziness

I read this yesterday and it lead me to some interesting questions.  Well, they were interesting to me anyway.  I’ve been fascinated with the different factions of the Republican Party and the increased number of Libertarians who primarily seem to vote Republican when there is no Libertarian around to vote for.  This piece mentions the possible break between Evangelical Christian Republicans and conservative Catholics over the new Pope’s recent comments regarding gays and poverty.  It appears to me that Libertarians have also broken with the Christian wing of the Republican Party over many social issues.   I’ve learned from our discussions here that Libertarians seem to be for both open borders and abortion, in some cases “on demand”, even I don’t believe in either of those suggestions, so is that to the left of me?

I guess I’m wondering where all this will eventually lead.  How hard will it be for Libertarians to vote for a Republican of the evangelical sort?  Is it just a case of voting for the lesser of two evils in a Presidential election, or even a local election?  When do your votes and principles collide?  I swallowed my objections and voted for Obama because of health care, and a couple of other accomplishments I supported,  rather than third party, which is what I normally do.  A big fat wasted vote either way really.

My thoughts rambled from the original piece but I wanted you guys to see how it got me thinking.  I’m finding it somewhat interesting that I tend to vote social issues and for the preservation of things such as Social Security, Medicare and other safety net protections.  There doesn’t seem to be that much difference to me in the reality of economic policy between the parties or for that matter even foreign policy now that many conservatives seem to be more isolationist than they were in the past, but I’m guessing the Libertarians/Conservatives here don’t agree and vote their pocket book, or is it all big vs small government and the demolition of the safety net that motivates y’all.  I’m curious.  It seems to me that the differences between us are more along the lines of priorities.  I think we all value similar things but just place more weight on some than others.  Or maybe I’m delusional.

I think it is a safe bet that if Pope Francis I lives more than a few years that Catholics will soon be kicked out of the Republican Party and resume their previous status as the semi-black race. The reason is simple. Pope Francis I is on the opposite side of the political divide from Pope John Paul II. The Polish pope was a Cold Warrior who basically took the Reagan-Thatcher line on left-leaning political movements in the Third World, including in Latin America. The Argentinian Jesuit pope isn’t a communist, but he advocates for the poor without any apology.

For now, conservative American Catholics are trying to parse the distinction, but it isn’t going to work. They are not going to be able to embrace The Slum Pope who wants to “make a mess” of the established order within the Church by encouraging young people to shake up the dioceses and force them to embrace the convicts, drug addicts, and the truly impoverished.

Our country is uniquely unable to appreciate this change specifically because our right wing succeeded in categorizing the left in the Third World (and, to an extent, even in Europe) as communist in sympathy. The right assumes that the Vatican is an ally in all things, but that is no longer even close to being the case. On so-called family values, the papacy is still reliably conservative, even if it can’t be counted on anymore to demonize homosexuality. But on economic issues, the papacy is now a dedicated enemy of the Republican Party.

Before long, the right will have no choice but to break from the pope, and then their opposition will grow to a point that the alliance between Catholics and evangelicals will not hold.

There sure has been a lot of talk lately about women.  I’ve been troubled by some of it as it seems we’re going backwards in some respects.  There are too many stories to link but between all the states enacting TRAP laws, all the strange definitions of rape, the mayor of San Diego’s bizarre harassment and who has and has not shielded him from investigation, the treatment of rape victims in the military,  USC redefining rape as not rape if there is no ejaculation (my personal favorite), who is and isn’t hot enough to either run for office or other more nefarious activities, etc. etc. that I’ve been trying to figure out what’s going on.  Maybe nothing ever really changed.  I’m concerned that so much of it has become political football.  I thought this piece on the subtleties of how a woman can succeed in the financial industry was pretty troubling.

Our youngest is working in another male dominated industry and is constantly trying to determine how to proceed on her merits while most of the men are attracted to her looks.  She has a few male mentors who seem to take her seriously so she’s focusing on that and trying to stay away from the guys who want to date her and stay focused on her work.  She’s discovering it’s an interesting dynamic that has many challenges.  She faced numerous challenges as a grad student but that was nothing compared to what she’s dealing with now.

It doesn’t help when other women give this kind of advice.

New details have emerged from a bias lawsuit filed by three former employees of Merrill Lynch against the company, which alleges that during training they were instructed to read a book called “Seducing the Boys Club: Uncensored Tactics From a Woman at the Top” and emulate its advice.

The tips in the book, published by New York Magazine’s The Cut, are truly shocking. “I play on [men’s] masculine pride and natural instincts to protect the weaker sex,” says a section of the book advising women on how to get men to do their work. “Unless he is morbidly obese, there is no man on earth who won’t puff up at this sentence: Wow, you look great. Been working out?” suggests a portion on diffusing tense situations.

On a lighter note the Anthony Weiner story is in another realm altogether in my opinion.  I guess I’d like to know why his wife is standing by him but it’s none of my business really.  Otherwise it seems to be a case of “consenting adults” which doesn’t bode well for his marriage or his candidacy but otherwise is just more creepily entertaining than anything else.

I wish I could share all the “Carlos Danger” jokes my husband has come up with, they’re hysterical, and just pop out of his mouth at the most inconvenient times.  He’s a true comic and I’ve thanked my lucky stars more than once that he makes me laugh.  Anyway we’ve had a lot of fun at Anthony Weiner’s expense around here.  I saw this and couldn’t resist.

Anthony Weiner Forever

Weiner forever

Friday Fun: Dilbert

The Official Dilbert Website featuring Scott Adams Dilbert strips, animations and more

Fight over Cato

Someone mentioned this the other day, but the Washingtonian has an article on the fight over control of Cato.

“Politicians surf public opinion,” says Cato scholar Jim Harper. “They are not interested in the right answer; they are interested in the answer that gets them reelected.” Crane told a colleague that the entrance to Cato’s building faced away from the Capitol “so Congress can kiss my ass.”

Whole thing is worth reading.


A few of you are strong economic libertarians.  A few of you are strong social libertarians.  I maintain many libertarian positions as do most of the rest of us here, and I have always found Cato’s web page worth the read.  I think all of us should read this:

and this:

Some of us will also find this worthy as background material, because it centers on the kind of important philosophical matters Cato raises that could indeed be silenced:

Partisan Democrats may think Cato is already a tool of Republicans, so I would not bother to recommend these articles at PL.   I think that any of you here from “left” to “right” who have ever gone to Volokh or to Libertarianism 101 recognize the difference.  When we argue policy, we may line up with the “platform” of one party far more than another, but political parties live first for self perpetuation by getting elected, which means raising money and votes, not to have true discussions of why policies make sense from a philosophical perspective.  We have some well established strains of political philosophy.  Libertarianism is one of them.  I want Cato to survive.

Monday Morning Opening (or, Ramblings From a Tired Mind)

She’s baaaa-aaaack!

I’m going to throw this up as a somewhat rambling morning thread, since I’ve spent bits and pieces of the last 24 hours going through PL and ATiM threads to get caught up. I’ll just throw out there that moving is the pits, but it does tend to clear out the rubble!

What a weekend! Starting on Thursday, when I went offline due to moving and associated intertubes interuptions, I’d like to make a few quick hits to get up to speed:

NoVA: An absolutely wonderful post that I’m going to re-read and comment on later. I really appreciate the time and effort you put into writing this, and I just wish that 12BB would get her fourth point of contact over here to read it. Does anybody know why she seems to be boycotting us?

lms: I can’t make a direct connection, but it really burns me up that healthcare insurance works the way it does. It’s one of the few perks that we (state) government lackeys have, and one of my last bills for my ex came in at $17K for a less than 72 hour stay in a hospital. I’m not paying it for several reasons, but part of it is that they don’t seem to be able/willing to break it down. . . you can’t convince me that they provided $17K of care to a man who didn’t need divine intervention to make him better (I’ve seen what they do: stick an IV in his arm, pump him up with vitamins and let him sleep it off. For $17K??????) And because I’ve got such great insurance that’s what they’d “bill” me. . . except I don’t have to pay anything other than the deductible, because they’re passing the cost on to people like you. It doesn’t make any sense to me.

Troll: Your PT was done at a physician-owned practice, which goes against many ethical guidelines in the PT world (my ex spent several years working at the Federal level on practice guidelines and scope of practice rules.) While it isn’t illegal, it’s considered unethical in many ways for PTs to work directly for orthopods, so it doesn’t surprise me that you were less than happy with your tennis elbow rehab. Having said that, I had a similar injury that just couldn’t be rehabbed, no matter what was tried. About five years later it spontaneously got better. . . so I hope that happens for you!

okie: Sounds like you ran a marvelous event–congrats! If it makes you feel any better, I failed to get the starting pistol to the Honorary Chair who was starting our Race For the Cure last May because I was trying to figure out why our trash cans hadn’t been delivered. There he was (County Mayor), reduced to saying “Bang!” at the start. . .

Who is Mike? And I see that shrink has changed his name again (to mdash?).

And, finally, I have to say that these people strike me as idiots.

What else is happening this morning?


On Libertarians and Faith

I was drafting a kind of “this is why NoVA is the way he is” post in response to a brief dialogue with 12Bars and Michigoose on the PL, but it could take weeks for me to sit down and actually write a complete essay with citations on balancing a catholic religious tradition and faith and the associated social responsibilities with a libertarian stance on economic and social issues. Then I realized that you could spend your whole career on such an exercise. So instead I’ll kind of hit the highlights, with the caveat that each of these points could be the subject of much more detail. I’ll also note that there’s a debate within the Church about this and each of my points has a legit counterpoint.

Subsidiarity — One of the facets of catholic social teaching is the idea that the smallest organization possible should be responsible any given activity. Pope John Paul II wrote in 1991 that ignoring this principle deprives society of its responsibility and this “leads to a loss of human energies and an inordinate increase of public agencies, which are dominated more by bureaucratic ways of thinking than by concern for serving their clients, and which are accompanied by an enormous increase in spending. In fact, it would appear that needs are best understood and satisfied by people who are closest to them and who act as neighbours to those in need.” Do note, however, that before making this point, the pope when into great detail on the role of the state in the economic sector. This is why I’m libertarian and and not anarcho-capitalist (although at times ….). See point 48 of John Paul II’s Centesimus annus here

Expanding on this, the more powerful and larger the state becomes, the less the need for charity. Instead, we create uncaring bureaucracies that will subsume and control those institutions that reflect our values. The state will not, and cannot, consider our values. You saw this in the health reform debate — under the goal of providing increased access to care, the bishops were shocked to learn of the requirements they will have carry out. They should not have been surprised.

Quoting from Taki’s Mag on this point: “In an American context, given our constitutional heritage and the large body of legal decisions solidifying its interpretation, on nearly any issue, Christians of any denomination should reject the assistance of the State. Our efforts to capture it, the courts have made it clear, will always fail. Any attempt to infuse the activity of the government with the moral content of a revealed religion will be rejected, in the end. Indeed, the more our own institutions cooperate with the government, the more they will be compromised; hospitals which take federal funds will be subject to secular ethics on issues like contraception, end-of-life, and even abortion. Religious colleges accepting federal grants will eventually be federalized, and so on.

Read more:

I would add that I have no problem with this. I don’t expect the state to enforce my values. I think we’re foolish to think that it would.

Militarism — In the Beatitudes, Jesus tells us “blessed are the peacemakers.” Arms and violence should be a last resort. At this point in our history and for the foreseeable future, our leaders have turned this idea around. We are at perpetual war now. And the technology is advancing at such a rate where we can kill so easily and without risk to our own soldiers that the system is slowing becoming automated.

The idea that our leaders will even consider the catholic notion of a “just war” is hopelessly lost. We don’t even debate war anymore. This is simply incompatible with catholic teaching. And I don’t believe for a second that those who can callously order remote killings on one day can turn around and have any legitimacy on the next when they say we need to raise taxes because of the poor, or schools or any other “public good.” They’ve demonstrated repeatedly they care only about their own power. Respecting authority is a big part of catholic tradition, but respect these guys? The only solution to this is a smaller state.

And we are at this point, because as Lord Acton put it, power corrupts. We can spin our wheels trying to control this through ethics reforms or campaign finance reform. I contend that these efforts will fail and the only true solution is not to attempt to control or weed out the inevitable corruption, but to limit the power. So while we have reg after reg and law after law attempting to control vice, the greater threat is power. You can say we need to give the state power b/c x,y, or z. They will take your good will (and your money) and abuse it

This power, which they’ve used to control an ever larger part of society is a threat to our greatest gift, that of free will, a topic that needs it’s own post.

Thanks — and I’ll (try to) stay quiet in the comments and let everyone else poke holes in it.

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