Category Archives: Federalism

California’s Centrally Planned Neighborhoods

Federalism, Founding Fathers, Private Property, Regulation

Think Americans still live in the decentralized republic the Founding Fathers bequeathed? Think  Americans benefit from a federal form of government, where control is local and residents get to decide about the character of the place they inhabit? Think again.

Consider California’s housing-supply law. If residents of a community don’t want to “develop” their corner of the world—if they wish to preserve the character of the place they call home—Big Brother Central Planner will make them.

Gavin Newsom, California’s new governor, is  suing “Huntington Beach, a coastal city in Orange County, for failing to comply with the state’s housing-supply law.”

California has a severe shortage of affordable housing, and he wants to bring a sense of urgency to the problem. The state has the highest poverty rate in America when adjusted for the cost of living. One-third of renters pay more than half of their income towards rent, and homeownership rates in the state are at their lowest level since the 1940s.

The lawsuit against Huntington Beach is meant to be a warning shot to cities that they cannot stonewall development. Fifty years ago the state passed a “housing element” law requiring communities to plan for new housing for all income groups, based on forecasts for population growth. In 2017 the state legislature passed several bills to speed up housing development and approvals. Until recently many cities have not met their housing numbers but faced little consequence …

MORE: “Why California’s governor is suing Huntington Beach: Can a lawsuit compel upscale cities to build more housing?

America Was Never Meant To Be A Raw, Ripe Democracy

Conservatism, Constitution, Democracy, Federalism, Founding Fathers, Natural Law

In the context of last week’s column against democracy, it’s important to remember that, “the reason the American democracy has been more successful than others is precisely because “the fathers of the American Republic devised an instrument of government unparalleled as a conservative power for ordered liberty.” (“The Conservative Mind” by Russell Kirk.)

Everything in the American Constitution was wisely designed to constrain raw democracy. A “great part of that accomplishment results from the wise conservatism of the Federal Constitution,” which avoids “the peril of a single assembly,” recognizes “the rights of several* states and the necessity for limiting the power of positive legislation.”

However, warned Kirk, the father of American conservatism, “[I]f there is a weak point anywhere in this “artificial reservoir,” “the mighty force which it controls will burst through it and spread destruction far and near.”

(“The Conservative Mind” by Russell Kirk, p. 335)

And so it has.

* The meaning of “several” in this sentence is individual,” I believe. 

** Image is of the guillotine, French democracy in action

Why Liberals Hate The Original Constitutional Scheme

Constitution, Egalitarianism, Europe, Federalism, Founding Fathers

Liberals disapprove of the brilliant men “who wrote America’s constitution,” you know, the geniuses of the pale patriarchy.

Yes, concedes the Economist, the Senate was devised “to represent places, not people, and there is a case for that; other constitutions, such as Germany’s, look to ensure regional representation in their upper house.”

So far, so good.

But liberals want heavily populated cities and city slickers—they vote Democrat—to drown out rural people, who vote Republicans. So, for ensuring that “the largest states do not dominate the rest,” the Senate is considered bad by liberals. “[T]he constitution provides equal representation for all the states, large and small alike. This builds in an over-representation for people in small or sparsely populated places.”

That liberals can’t abide.

But for the electoral college liberals, who’re ignorant of any political theory other than egalitarianism, reserve the ugliest terms.

The “electoral college,” writes the Economist, is as system “that America’s founders jury-rigged in part to square the needs of democracy with the demography of slavery.”

Come again?

See: “The minority majority: America’s electoral system gives the Republicans advantages over Democrats,” July 12th 2018.

UPDATED (7/10): Kavanaugh Questions

Constitution, Federalism, Justice, Law, The Courts

Brett Kavanaugh, of the U.S. Court of Appeals for the D.C. Circuit, has been nominated to replace Justice Anthony Kennedy on the Supreme Court.

Kavanaugh comes from Administrative Law—was he good at fighting the Deep State?—was appointed and recently praised by George W. Bush, who gave us John Roberts, and George Washington University professor Jonathan Turley, who approved of Neil Gorsuch, suggests Kavanaugh is not an intellect of Gorsuch’s order.

For his part, libertarian-leaning Rep. Justin Amash (R­–Mich.) is openly unhappy. He tweets:

Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his 4th Amendment record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.

Randy Barnett, on the other hand, approves.

I don’t know that libertarians want “big fierce nominees,” but I see what Turley, an interesting thinker himself, is saying in the must-read op-ed, “Why ‘big fierce’ nominees are rare.”

An original thinker is always a good thing (and how few of those there are).

Supreme Court nominees. Most are not especially remarkable in their prior rulings or writings. They are selected largely for their ease of confirmation and other political criteria. Big fierce minds take too much time and energy to confirm, so White House teams look for jurists who ideally have never had an interesting thought or written an interesting thing in their increasingly short careers. … The last nominee was a remarkable departure from this judicial ecology rule. As I testified at his confirmation hearing, Neil Gorsuch was an intellect of the first order with a long list of insightful and provocative writings as both a judge and an author. …The history of Supreme Court nominations is largely one of planned mediocrity. The influential legal minds of a generation often are avoided for more furtive minds. … There is a difference between fierce ideology and fierce intellect. Many on the list of 25 judges stand out for commitment to conservative values but are not particularly distinguished in contributions to legal thought. Most fall closer to the mold of Samuel Alito and Clarence Thomas, as opposed to Antonin Scalia and Gorsuch.

Confirmations tend to reward young lawyers who avoid controversies to advancement on the Supreme Court.

Jonathan Turley cites Richard Posner and Robert Bork as examples of “big fierce minds,” which simply could not be countenanced on the mediocrity-necessitating SCOTUS.

Brilliant piece. Turley is brilliant.

UPDATE (7/10):

John G. Roberts Jr.? Please no.