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The Institute for Justice, a libertarian public interest law firm, is one of Pickerhead’s favorite charities. All day long those folks get to sue governments! Clark Neily III, one of their senior attorneys has a new book that has received a lot of attention. Bookworm Room has the first post.
I went to a lunch today where the speaker was Clark M. Neily, III, author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. Neily is an attorney at the libertarian Institute for Justice, a public interest organization that focuses on Constitution-centric civil liberties cases. (I know that it sounds redundant to say “Constitution-centric civil liberties cases” but I use that phrase deliberately to distinguish it from the ACLU’s version of “civil liberties,” which is also known as the “We hate Christians” school of thought.) The subject of his talk was the poisonous effect of the “rational basis” analysis that the Supreme Court has mandated for cases involving government infringement on an individual’s right to work.
Neily is a great speaker. He speaks quickly, so you have to pay attention. Paying attention isn’t a problem, though, because Neily also speaks clearly, and everything he says is interesting, with enjoyable and appropriate dollops of humor thrown in at warp speed. This is a man with a very high verbal, analytical intelligence. Even as I was listening closely to what he said, a small part of my brain was running an IQ calculator. When he started speaking, I pegged him at about 145 on the IQ scale. By the time he was done, I’d moved him up to 175. After all, his is precisely the type of intelligence the IQ test measures.
Before I begin, it behooves me to tell you that I haven’t yet read Neily’s book. I was planning on looking for it in the library or getting it on Kindle (because, as I’ve probably mentioned more than once, I’m very cheap). By the time he was done speaking, though, I wanted a signed copy and shelled out $26 (!) just so that I could gloat about having it signed by the man himself. This disclaimer is to warn you that I’m not reviewing his book, which I assume is as interesting as the speech. The book’s Table of Contents also tells me that it covers a much broader range of topics than the speech did. Finally, since I haven’t done anything remotely related to Constitutional law in years, you’ll have to pardon (or perhaps be grateful for) the fact that this is not a lawyerly analysis.
The “rational basis” test is the Supreme Court-mandated test for “non-fundamental rights.” One of those non-fundamental rights (and this may come as a surprise to you) is the right to hold a job in the field of your choice or to sell a product of your choice. Non-fundamental rights, by definition, are less important than rights such as speech or freedom of worship. (And no, don’t get me started on Obamacare’s attack on faith.)
If you protest a state or federal law imposing such a great burden on your profession that you cannot run a viable business, or that imposes ridiculous impediments as a predicate to holding a certain type of job, the federal court judge hearing your case will ask the government to justify the law. Fortunately, for the government, the standard, known as the “rational basis test” is so low that it requires no facts or analysis, just imagination. Worse, it turns the judge into an active part of the government’s defense team. Or as Neily explains: …
Here’s George Will.
Disabusing the Republican Party of a cherished dogma, thereby requiring it to forgo a favorite rhetorical trope, will not win Clark M. Neily III the gratitude of conservatives who relish denouncing “judicial activism.” However, he and his colleagues at the libertarian Institute for Justice believe the United States would be more just if judges were less deferential to legislatures.
In his book “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government,” Neily writes that the United States is not “a fundamentally majoritarian nation in which the ability to impose one’s will on others through law is a sacred right that courts should take great pains not to impede.” America’s defining value is not majority rule but individual liberty.
Many judges, however, in practicing what conservatives have unwisely celebrated as “judicial restraint,” have subordinated liberty to majority rule. Today, a perverse conservative populism panders to two dubious notions — that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.
Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained. This leaves people such as Sandy Meadows at the mercy of government acting as protector of the strong.
Meadows was a Baton Rouge widow who had little education and no resources but was skillful at creating flower arrangements, which a grocery store hired her to do. Then Louisiana’s Horticulture Commission pounced. …
Paul Ryan had a WSJ OpEd calling for a different focus for the war on poverty.
… This month marks the 50th anniversary of Lyndon B. Johnson’s War on Poverty. For years, politicians have pointed to the money they’ve spent or the programs they’ve created. But despite trillions of dollars in spending, 47 million Americans still live in poverty today. And the reason is simple: Poverty isn’t just a form of deprivation; it’s a form of isolation. Crime, drugs and broken families are dragging down millions of Americans. On every measure from education levels to marriage rates, poor families are drifting further away from the middle class.
And Washington is deepening the divide. Over the past 50 years, the federal government has created different programs to fix different problems, so there’s little or no coordination among them. And because these programs are means-tested—meaning that families become ineligible for them as they earn more—poor families effectively face very high marginal tax rates, in some cases over 80%. So the government actually discourages them from getting ahead.
Poverty isn’t a rare disease from which the rest of us are immune. It’s the worst strain of a widespread scourge: economic insecurity. That’s why concern for the poor isn’t a policy niche; it goes to the heart of the American experiment. What the poor really need is to be reintegrated into our communities. But Washington is walling them up in a massive quarantine.
On this less-than-golden anniversary, we should renew the fight. The federal government needs to take a comprehensive view of the problem. It needs to dump decades-old programs and give poor families more flexibility. It needs to let communities like Pulaski High develop their own solutions. And it needs to remember that the best anti-poverty program is economic growth.
As my friend Sen. Mike Lee (R., Utah) likes to say, we need to bring the poor in—to expand their access to our country’s free enterprise and civil society. Luckily, policy makers in states and other countries are doing just that. Here’s a look at some of the latest advances in the fight against poverty. …
Thomas Sowell has a more focused look at the failures of the war on poverty.
Without some idea of what a person or a program is trying to do, there is no way to know whether what actually happened represented a success or a failure. When the hard facts show that a policy has failed, nothing is easier for its defenders than to make up a new set of criteria, by which it can be said to have succeeded.
That has in fact been what happened with the “war on poverty.”
Both President John F. Kennedy, who launched the proposal for a “war on poverty” and his successor, Lyndon B. Johnson, who guided the legislation through Congress and then signed it into law, were very explicit as to what the “war on poverty” was intended to accomplish.
Its mission was not simply to prove that spending money on the poor led to some economic benefits to the poor. Nobody ever doubted that. How could they?
What the war on poverty was intended to end was mass dependency on government. President Kennedy said, “We must find ways of returning far more of our dependent people to independence.”
The same theme was repeated endlessly by President Johnson. The purpose of the “war on poverty,” he said, was to make “taxpayers out of taxeaters.” Its slogan was “Give a hand up, not a handout.” When Lyndon Johnson signed the landmark legislation into law, he declared: “The days of the dole in our country are numbered.”
Now, 50 years and trillions of dollars later, it is painfully clear that there is more dependency than ever. …
Moody’s has rated YeshivaUniversity’s bonds as “junk.” TaxProf has the story.
Moody’s Investors Service has said bonds issued for Yeshiva – a highly respected Jewish university in Manhattan – are junk.
But administrators say they are working diligently to make the university sustainable, and some faculty, driven by the notion that the university is unique and has assets and a future beyond the eye-popping short-term math, believe the institution is or can eventually be solid. …
… University officials told Moody’s they expect an “equally poor performance” this year and at least three more years of shortfalls, which come on top of several years of previous shortfalls that average about 16 percent of the institution’s operating budget. Moody’s said the shortfalls were driven by operations at Yeshiva’s Albert Einstein College of Medicine campus.
YeshivaUniversity’s 2012 tax return lists President Joel’s compensation as $1,242,424, and eleven other salaries in excess of $600,000.
Free Beacon tells us about union creeps living large at Disney.
Union bigwigs representing some of the nation’s lowest paid workers are holding their annual board meeting at one of Florida’s ritziest resorts just months after increasing membership dues.
The United Food and Commercial Workers union, which represents 1.4 million workers, is holding its annual board meeting at Disney’s Grand Floridian Resort, where “Victorian elegance meets modern sophistication.”
Two-hundred-fifty union officials are attending the 11-day conference ending Jan. 25, although not all are staying at the Grand Floridian. Resort rooms start at $488 per night before taxes and can exceed $2,000 if officials opt for a two Bedroom Club Level suite. …
… The union spent more than $500,000 to host its 2011 board meeting at the Hyatt Regency Coconut Point Resort & Spa in BonitaSprings, FL—home to a “championship golf course and world-class spa”—according to UFCW’s 2012 Department of Labor filings. The union also spent more $155,000 for a conference at Asheville’s Omni Grove Park Inn, a Four Diamond resort that has earned praise from Conde Nast Traveler, Golf Magazine, and Wine Spectator in recent years. …
… UFCW does not just shell out big bucks for hotel accommodations. International President Hansen received more than $350,000 in salary and other disbursements in 2011, while nine other union honchos pulled down more than $220,000 on the year. …
Andrew Malcolm with late night.
Conan: Michelle Obama says she might consider getting plastic surgery. Said, “If Barack’s popularity keeps dropping, I do not want to be recognized.”
Conan: Legal experts say if Justin Bieber is convicted of a felony, he could be deported back to Canada. They also say if he’s found to have cocaine in his system, he could be elected mayor of Toronto.
Leno: Justin Bieber is in trouble for throwing eggs at a neighbor’s house. Could be big trouble. The DA wants to charge him as an adult.
Letterman: Police raid Justin Bieber’s house after his altercation with a neighbor. Now there’s a five-day waiting period for him to buy eggs.