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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.

Montana Supreme Court’s War Against the Rule of Law Finally Getting The Attention It Deserves

Montana Supreme Court’s War Against the Rule of Law Finally Getting The Attention It Deserves

Respect for the rule of law is fundamental to a free society. It also is necessary for economic well being.

Montana is among the nation’s poorest states. I was a law professor there for over 23 years and I also serve as Senior Fellow in Constitutional Jurisprudence at the Montana Policy Institute. In a 2012 study I explained a crucial reason for Montana poverty: The state’s highest court has one of the nation’s worst records in following the rule of law.

The court’s defects are an open secret among Montana lawyers, but the problem has remained uncorrected for many years. Now a heated election campaign suggests “the times they are achangin’.”

For several decades, the Montana court has been notorious for overruling its own opinions, issuing incoherent decisions, and exhibiting political bias. My 2012 study documented all of this in detail: The Montana Supreme Court vs. The Rule of Law.

If the Montana Supreme Court is not following the rule of law, can’t the U.S. Supreme Court (SCOTUS) step in? Usually not. Most of the Montana tribunal’s opinions deal with issues of state law, and on that topic the state supreme court is usually final. Even when a federal issue is involved, the wronged party may not apply for SCOTUS review. For example, he may not have the funds to pursue the case (Remember: It’s a poor state). Or his lawyer may be reluctant to challenge the same judges who control his license.

Sometimes, however, justice is done. Shortly after my study, the U.S. Supreme Court promptly reversed two of the Montana court’s more outrageous rulings.

Montana judges are elected, but for several reasons the state’s judicial election system has been stacked heavily against reform. This year, however, all that could change: The state’s former solicitor general, Harvard Law grad Lawrence Van Dyke, is running for the court, and he’s not pulling any punches. Not surprisingly, members of the good ole boy network that has dominated the bench are desperately unhappy about that. In fact, some of their charges have been, well, rather unjudicial.

It is, moreover, hilarious to hear former justices who were elected with special interest money complain about special interest money. Or to cite screeds from “non partisan” organizations without revealing that those organizations have explicitly leftist agendas.

The good ole boy network’s real gripe seems to be that SCOTUS has struck down the state laws that protected their campaign finance monopoly. This has opened the system to groups formerly locked out, and has increased the possibility that Montana voters might learn the truth. I understand how this would terrify some people.

Breakdown in the Americans' Respect for the Rule of Law?

Breakdown in the Americans' Respect for the Rule of Law?

RGN Montpelier '07Some commentators and compilers have sensed what they believe is a weakening of the rule of law in the United States.  I’ve documented an example in one state.

Conduct surrounding the George Zimmerman case provides additional cause for concern, including prejudicial comments by President Obama and rioting subsequent to acquittal.

To his credit, President Obama did express support for the verdict once it came in, although he inappropriately coupled it with promotion of his political agenda.

Adherence to the rule of law is critical to survival of a free society. This, in turn, requires adherence to five basic standards:

* Clarity of the rules.

* Stability of the rules.

* Notice—the ability of the public to understand the rules in advance.

* Fairness, particularly in the procedures used in enforcing the rules.

* Judicial restraint.

Outside efforts to influence or upset a verdict run contrary to the stability, notice, and fairness standards.

Think your state courts are bad? Check this out.

Think your state courts are bad? Check this out.

RGN Montpelier '07Conservatives in Colorado and other states often complain about the liberalism of their states’ courts. They should be glad they don’t live in Montana.

Montana’s public image is one of rugged individualism, and in a few spheres of life (such as guns), image reflects reality. But in fiscal and regulatory affairs, Montana has a long tradition of what used to be called “prairie socialism.” And while in recent years the state’s politics have moderated, its state supreme court remains far to the left.

It’s not just that the court is liberal—after all, most liberal judges understand the importance of the rule of law. It’s more that the Montana bench often doesn’t act alike a “court” at all. Part of the problem is that its level of judicial craftsmanship is low.  Another part of the problem is that Montanans often have no clue as to what the court will do next, since it overrules its own precedents at an astounding rate. And the justices regularly subordinate even well-established legal principles to “progressive” political preferences.

The nation got some inkling of this last year when the U.S. Supreme Court reversed two particularly outlandish Montana decisions. In one case, the state justices had directly defied the U.S. Supreme Court (and modern constitutional law) by limiting the protection of the First Amendment in Montana. In the other, case, the state justices authorized a sweeping expropriation of a utility company’s property.

Now you can read all about it, even if you don’t live in Montana. The Independence Institute’s sister organization, the Montana Policy Institute, recently published my study entitled The Montana Supreme Court vs. The Rule of Law. It documents in detail what members of the Montana Bar, bemused legal scholars—and, indeed, some dissenters on the court itself—have long said: The Montana Supreme Court is truly an “outlier.”

Even for those in other states, it’s an interesting read—as well as a sobering reminder of what life  is like when judges no longer enforce the rule of law.