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Restoration of the Rule of Law: The Link Between Your Increased Wealth and Obama’s Departure

Restoration of the Rule of Law: The Link Between Your Increased Wealth and Obama’s Departure

This article originally appeared in The Hill.

If you are like me, your retirement account rose substantially in value during 2017.

The end of the stubborn economic lag of the Obama years is a signal event affecting the life every American. It’s not just the stock market that’s up, but GDP and job growth as well.

Presumably because it would make the Trump administration look good, the mainstream media have given this development relatively little attention—as illustrated by the New York Times’ non-treatment in its 2017 Year in Review. (The Denver Post’s December 31 print edition review provides another example.) When the mainstream media have discussed the economy outside their business pages, they sometimes have done so only to belittle the progress made.

On the other side of the political divide, President Trump is (of course) claiming credit. No doubt he is entitled to some.

But let’s face it: The election of almost any of the major presidential candidates other than avowed socialist Bernie Sanders probably would have triggered a similar boom. It might have been greater under a President Rubio or President Kasich or less under a President Clinton. But the upsurge would have come because its principal cause has not been who was elected, but who has departed.

Those departed are Barack Obama and an administration comprised largely soft-totalitarian “progressives” who showed little respect for the rule of law during their eight-year reign.

Economists across the political spectrum agree that the rule of law is key to a healthy economy, particularly in developed countries. When legal rules are clear and predictable, investors are more willing to risk their capital than when rules are fuzzy and subject to random change.

The American Founders recognized this. One reason they adopted the Constitution was to strengthen the rule of law. Under the Articles of Confederation (1781 – 1789) legal stability was jeopardized by demagogic policies pursued in some of the states. Partly as a result, the United States in the 1780s was mired in an economic depression.

James Madison wrote in Federalist No. 44:

The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs [i.e., opportunities for unfair gain] in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.

Madison focused on legislative violations of the rule of law. The Obama years saw some of these, including largely inscrutable legislation that mauled our health care and financial systems.

However, most of the threats to the rule of law came from executive action: a frenzy of new economic regulations; illegal immigration orders; unwarranted privileges to the politically-powerful, such as exemption from Obamacare mandates; the use of federal grants to skew scientific research; IRS attacks on dissident groups; subsidies to some businesses at the expense of others; and increased surveillance of political opponents.

Of course, the Obama administration was not the first presidency to threaten the rule of law. But most other serious presidential attacks occurred during wartime. Moreover, the Obama administration’s assault was unusually comprehensive—far more so than, for example, sporadic efforts by prior presidents to turn the IRS against political enemies.

President Trump also has expressed an unfortunate preference for distorting the legal playing field. But so far his administration has done nothing comparable to the Obama presidency’s third-world-style behavior.

No wonder why so many Americans are breathing a sigh of relief—and then following it up with concrete investments in our country’s future.

Why Did the Framers Create the Electoral College?—1st in a Series

Why Did the Framers Create the Electoral College?—1st in a Series

Colorado went Democrat in the last presidential election. But three of those elected as presidential electors wanted to vote for someone other than Hillary Clinton. Two eventually cast ballots for Clinton under court order, while one—not a party to the court proceedings—opted for Ohio Governor John Kasich, a Republican. After this “Hamilton elector” voted, state officials voided his ballot and removed him from office. The other electors chose someone more compliant to replace him.

Litigation over the issue still continues, and is likely to reach the U.S. Supreme Court. Moreover, President Trump’s victory in the Electoral College, despite losing the popular vote, remains controversial. So it seems like a good time to explore what the Electoral College is, the reasons for it, and the Constitution’s rules governing it. This is the first of a series of posts on the subject.

The delegates to the 1787 constitutional convention found the question of how to choose the federal executive one of the most perplexing they faced. People who want to abolish the Electoral College usually are unfamiliar with how perplexing the issue was—and still is.

Here are some of the factors the framers had to consider:

* Most people never meet any candidates for president. They have very little knowledge of the candidates’ personal qualities. The framers recognized this especially would be a problem for voters considering candidates from other states. In a sense, this is less of a concern today because, unlike in 1787, we have mass media through which candidates can speak directly the voters. In other ways, however, it is more of a concern than it was in 1787. Our greater population renders it even less likely for any particular voter to be personally familiar with any of the candidates. And, as I can testify from personal experience, mass media presentations of a candidate may be 180 degrees opposite from the truth. One example: media portrayal of President Ford as a physically-clumsy oaf. In fact, Ford had been an all star athlete who remained physically active and graceful well into old age.

* Voters in large states might dominate the process by voting only for candidate from their own states.

* Generally speaking, the members of Congress would be in a much better position to assess potential candidates than the average voter. And early proposals at the convention provided that Congress would elect the president. However, it is important for the executive to remain independent of Congress—otherwise our system would evolve into something like a parliamentary one rather than a government of three equal branches. More on this below.

* Direct election would ensure presidential independence of Congress—but then you have the knowledge problem itemized above. In addition, there were (and are) all sorts of other difficulties associated with direct election. They include (1) the potential of a few urban states dictating the results, (2) greatly increased incentives to electoral corruption (because bogus or “lost” votes can swing the entire election, not just a single state), (3) the possibility of extended recounts delaying inauguration for months, and (4) various other problems, such as the tendency of such a system to punish states that responsibly enforce voter qualifications (because of their reduced voter totals) while benefiting states that drive unqualified people to the polls.

* To ensure independence from Congress, advocates of congressional election suggested choosing the president for only a single term of six or seven years. Yet this is only a partial solution. Someone elected by Congress may well feel beholden to Congress. And as some Founders pointed out, a president ineligible for re-election still might cater to Congress simply because he hopes to re-enter that assembly once he leaves leaves office. Moreover, being eligible for re-election can be a good thing because it can be an incentive to do a diligent job. Finally, if a president turns out to be ineffective it’s best to get rid of him sooner than six or seven years.

* Elbridge Gerry of Massachusetts suggested election by the state governors. Others suggested election by state legislatures. However, these proposals could make the president beholden to state officials.

* The framers also considered election of the president by electors elected by the people on a strict population basis. Unless the Electoral College were very large, however, this would require electoral districts that combined states and/or cut across state lines. In that event, state law could not effectively regulate the process. Regulation would fall to Congress, thereby empowering Congress to manipulate presidential elections.

* In addition to the foregoing, the framers had to weigh whether a candidate should need a majority of the votes to win or only a plurality. If a majority, then you have to answer the question, “What happens if no candidate wins a majority?”On the other hand, requiring only a plurality might result in election of an overwhelmingly unpopular candidate—one who could never unite the country. The prospect of winning by plurality would encourage extreme candidates to run with enthusiastic, but relatively narrow, bases of support. (Think of the possibility of a candidate winning the presidency with 23% of the vote, as has happened in the Philippines.)

The delegates wrestled with issues such as these over a period of months. Finally, the convention handed the question to a committee of eleven delegates—one delegate from each state then participating in the convention. It was chaired by David Brearly, then serving as Chief Justice of the New Jersey Supreme Court. The committee consisted of some of the most brilliant men from a brilliant convention. James Madison of Virginia was on the committee, as was John Dickinson of Delaware, Gouverneur Morris of Pennsylvania, and Roger Sherman of Connecticut, to name only four of the best known.

Justice Brearly’s “committee of eleven” (also called the “committee on postponed matters”) worked out the basics: The president would be chosen by electors appointed from each state by a method determined by the state legislature. It would take a majority to win. If no one received a majority, the Senate (later changed to the House) would resolve the election.

Next time: Rules governing the Electoral College.

The Left’s Refusal To Accept Election Results vs. Its Constitutional “Super-Precedent” Theory

The Left’s Refusal To Accept Election Results vs. Its Constitutional “Super-Precedent” Theory

Since Election Day, the stock market has soared. The benchmark Standard and Poor’s 500 index, which reflects the stock price of larger companies, has risen by more than 14 percent. The NASDAQ Composite, which measures a wider sample of stocks, has jumped more than 16 percent.

These stunning results were achieved in less than 100 days. Everyone knows the reason: Investors have laid out hundreds of billions of dollars with the expectation of a more-free-market-oriented Republican president and Congress.

By “investors,” I don’t mean the rich. The vast majority of investments are made on behalf of people of modest means. A single pension fund such as TIAA, which represents public employees, handles more than 10 times the wealth of the richest man in the world (Bill Gates).

This stock market rise is a huge vote of confidence in free-market policies, but it is also a warning. Specifically, it is a warning to those on the left who have abandoned Americans’ post-election honeymoon tradition in an effort to trigger what Mark Levin calls a “silent coup.” If the left is successful in neutering Trump or the GOP Congress, we can expect investors to flee the markets in droves. The result could be economic collapse.

The Super-Precedent Theory

When considering whether to alter direction, it is always wise to consider the extent to which people have relied on current policy. In other contexts, the left purports to understand this. Illustrative is a legal theory liberal academics promote called “super-precedent.”

The theory of super-precedent is the Supreme Court should not overrule certain liberal constitutional cases, even if they were decided incorrectly. This is because people have relied on those cases. Abandoning them would be disruptive.

Promoters of the “super-precedent” theory apply it to cases such as Roe v. Wade, the 1973 decision that upended the abortion laws of all 50 states. They also apply it to the court’s 20th-century constitutional holdings that, on specious constitutional grounds, eroded the Constitution’s limits on federal economic regulation.

Yet few, if any, Supreme Court decisions occasion as much reliance as the results of a national election. If Roe v. Wade were overturned tomorrow, no abortions would be undone. In all probability, no person currently pregnant would be denied an abortion. This is because it would take months, perhaps years, for state legal systems to respond to the change. At most, reversal of Roe v. Wade would affect future pregnancy planning in some states.

Supreme Court cases allowing excessive federal regulation have engendered more reliance than Roe v. Wade, but the amount of reliance can be overstated. In Wickard v. Filburn (1942), the Court misconstrued two clauses of the Constitution to permit direct federal regulation of agriculture. If the Court were to overturn Wickard, it would re-establish some constitutional limits on federal regulation—and many business plans would have to change.


How the Supreme Court Can Minimize Damage When Properly Overturning Erroneous “Super-Precedents”

But the Court has ways to contain or eliminate the damage. One is to phase in the change. In fact, this is precisely what the justices did when they reversed Plessy v. Ferguson (1896), the long-standing precedent that authorized state-sponsored racial segregation.

If, on the other hand, the left is successful in delegitimizing the GOP president and Congress, there would be no way to contain the damage. The free-market policies investors were promised and relied upon would not be forthcoming after all. Investors would flee the stock market in panic. Countless smaller business and personal decisions not recorded in the stock market would be unhinged as well.

No doubt some on the left would be perverse enough to welcome this result. But those who mean well should realize they are playing a very dangerous game. For the good of the country, it’s time for them to stop being spoilsports and accept the election results.

Note: This article was originally published at the RedState blog.