The age of big government is now upon us. The question is how to respond to this daunting reality. One possible approach is prudential acquiescence to the inevitable. Conservatives could work toward incremental reform within today’s political paradigm. The Hoover Institution’s Peter Berkowitz offers this advice in his thoughtful column in The Wall Street Journal. Libertarians, in particular, must “absorb” the lesson that frontal assaults on New Deal-era policies are out. He writes:
Richard Epstein | All Articles
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Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).
Now that the Supreme Court has held President Obama’s Patient Protection and Affordable Care Act (ACA) constitutional, mounting evidence suggests that the statute’s most ardent defenders may well come to rue the day. During the legal struggles over the ACA, its defenders both on and off the Supreme Court took for granted the proposition that the law would deliver on its major promise, which was to extend affordable coverage to the over 47 million people who now lack healthcare insurance, without disrupting the protection that others currently enjoy.
Money is what drives all major election campaigns. In the run-up to the 2012 presidential election, sharp knives have already been drawn on the issue of corporate and union contributions. In addressing this issue, virtually all roads lead back to the much-contested Supreme Court decision in Citizens United v. Federal Election Commission, which made it unconstitutional for the federal government to restrict any “electioneering communication” to the public by a corporation or a union within 30 days of a primary or general election.
The bad news about our stalled economy is distressing on two fronts. The unemployment rate recently crept back up to 8.2 percent and the stock market lost all its gains for 2012. The second reason concerns the long-term soundness of our institutions. California’s fiscal crisis, for instance, is in large measure driven by its outsized pensions for retired public employees.
A recent story in The New York Times offers a surprising critique of the Americans With Disabilities Act when it comments on the “flood of suits” brought by a small number of individuals in wheelchairs against a wide range of small businesses in New York City. These quasi-professional litigants scour the landscape to identify businesses whose premises are not in compliance with the elaborate access rules set by the ADA. Then, for a fee of around $500, they refer their discoveries to specialist lawyers who force expensive settlements with the hapless owners, collecting lucrative fees for themselves in the process, usually without litigation.
In Federalist No. 78, Alexander Hamilton famously argued that the federal courts were “the least dangerous” branch of government. What he did not understand was that they also proved, over time, to be the worst constructed. The problems here start at the top and work their way down to the bottom. As a recent New York Times column by Duke law professor Paul Carrington points out, the Constitution states that “the judges, both of the supreme and inferior Courts shall hold their offices during good behavior,” which, except in cases of corruption or moral turpitude, effectively means for life.