Cats and Dogs, Libertarians and Social Conservatives

There’s been an interesting exchange among libertarians in response to the Catholic Church’s kick-off of a campaign against application of the HHS mandate on contraception and “morning after” pills to certain religious institutions without an adequate conscience exception.

Jay Carney, writing in the Washington Examiner, began the conversation by suggesting that social conservatives recognize big government as an enemy of religion and calling on libertarians to reassess their political alliances. Walter Olson of Cato responds, observing that libertarians have been out front in opposing state impositions on religion, but pointing out that there are limitations to co-operation between libertarians and social conservatives to the extent that the latter support state intervention as an instrument of the culture war. Walter’s Cato colleague, David Boaz, argues that social conservatives have often called for impositions on liberty to advance a particular moral view, citing a number of historic examples.

Two things.  First, it is always heartening to see libertarians understand that freedom requires resistance to impositions on voluntary associations as well as restrictions of individuals.  

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Money and the Recall

Paul Secunda, as a labor law professor, weighs in on the aftermath of the recall. He makes some good points. But as (I think) one of two people in Wisconsin who teach Election Law (Mike Wittenwyler, an adjunct at UW, is the other), I would like to revise and extend his remarks.

Paul complains of the “8 to 1” spending advantage said to have been enjoyed by Scott Walker and suggests that this somehow can be attributed to the the results of the Supreme Court’s decision in Citizens United v. FEC. This advantage, while overstated, is the result of a law. But that law has nothing to do with Citizens United.

First, a caveat on the “8 to 1” figure.

As my colleague, Tom Kamenick, pointed out (and not at my direction, I was off in DC), this metric doesn’t reflect the situation on the ground. 

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The Individual Mandate: A Rejoinder

Last week, Ed Fallone posted his prepared remarks at our debate on the constitutionality of the individual mandate in the health care law. Inspired by his example, I have – after a fashion – cleaned up my notes for last week’s debate. This is how I see it.

When Nancy Pelosi was asked about the potential for a constitutional challenge to the health care law, her response was “you’ve got to be kidding.” The substance of her response – “look, we used the commerce power and that permits us to do almost whatever we want” – reflected large patches of conventional wisdom.

Many lawyers (particularly those trained before the Rehnquist Court began to push back against an unlimited commerce power) and, in particular, Progressive legal academics thought that this dragon had been slain long ago. They assumed that the idea that there might be structural limits on the federal constitution had been relegated to the status of flat earth creationism and alchemy.

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