President Lincoln's 1863 Thanksgiving Proclamation

Washington, D.C. October 3, 1863
By the President of the United States of America.
A Proclamation.

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever watchful providence of Almighty God. In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom.

No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People.

I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union.

In testimony whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed.

Done at the City of Washington, this Third day of October, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the Unites States the Eighty-eighth.

By the President: Abraham Lincoln

Federalism at Work Protecting Economic Liberty

A recent study by Americans for Tax Reform finds that states with high taxes and pro-union labor laws are losing citizens and thus losing influence in Congress (and, it should be noted, the Electoral College.)

In particular the study finds that eight states are projected to gain at least one Congressional seat as a result of the 2010 Census, with the gains distributed as follows. Note that the states highlighted in red cast their electoral votes for George W. Bush in 2004, while those highlighted in blue cast their for John Kerry.

1) Texas (4 seats);

2) Florida (2 seats);

3) Georgia (1 seat);

4) Nevada (1 seat);

5) South Carolina (1 seat);

6) Utah (1 seat);

7) Washington (1 seat);

The same study finds the losses distributed thusly:

1) New York (2 seats);

2) Ohio (2 seats);

3) Illinois (1 seat);

4) Louisiana (1 seat);

5) Massachusetts (1 seat);

6) Michigan (1 seat);

7) Missouri (1 seat);

8) New Jersey (1 seat);

9) Pennsylvania (1 seat);

The results have obvious ramifications for the 2012 Presidential Election. In particular, the results show a net gain of six electoral votes for states that cast their votes for George W. Bush in 2004 over John Kerry. Recall that, in 2004, President Bush received 286 electoral votes --- 16 more than the 270 needed to prevail. If the same states vote for the Republican candidate in 2012, that candidate will receive 292 electoral votes. As a result, such a candidate could lose, say, Ohio (18 electoral votes in 2012), and still prevail. That is to say, the electoral map is shifting in favor of the Republicans.

The study also finds that, among the states gaining seats, the average top tax rate on personal income is 2.8 percent, while the average top rate in states losing seats is just over 6 percent. Moreover, 7/8s of the states that gained seats have passed so-called "right to work laws." Such laws, authorized by the Taft-Hartley Act of 1947 (passed over President Truman's veto) prevent Unions and employers from negotiating collective bargaining agreements that require employees to join or financially support a union as a condition of employment with the employer in question. States that decline to adopt so-called "right to work laws" are known as "closed shop states."

For proponents of economic liberty, the message of the study is clear, namely, states with low taxes on high income earners and a favorable climate for business create economic opportunities and thus attract in-migration, while states with high taxes on the well-to-do and unfavorable business climates stultify economic growth and induce out-migration. These proponents would also view such migrations as part and parcel of a well-functioning system of federalism whereby states compete with one another for productive citizens and capital. Such competition, they would argue, deters states from adopting unduly onerous regulations and taxes at the behest of special interests, thereby providing a bulwark against economic oppression.

Proponents of high taxes and closed shops might interpret this data in a different way, however. These analysts might see these data as reflecting a "race to the bottom," that is, destructive competition between the states for high income individuals and businesses hostile to unions. Under this view, states compete with each other by lowering taxes and relaxing protection for workers, thereby undermining the ability of each state to generate sufficient tax revenue to support essential functions as well as the ability to ensure fair wages and working conditions for labor. Adherents to this view would presumably decry the system of federalism that allows this competition to take place and, for instance, advocate repeal of that portion of the Taft-Hartley Act that authorizes states to pass right to work laws.

My own sense is that any "race to the bottom" characterization of these data is strained. I have no doubt that such races can occur. For instance, absent federal regulation, individual states may adopt lax anti-pollution regulation if pollution produced by industrial activity crosses state lines. (Imagine, for instance, a factory in one state that emits pollutants into a river that then flows through several other states.) In such cases, no individual state captures the full costs and benefits of the legislation it passes because of negative externalities flowing from the activity in question. In these settings, it is appropriate for the national government to step in and impose a uniform solution. When it comes to income tax rates and right to work laws, however, any supposed externalities are far less apparent. With respect to these policies, then, states seem to operate more or less as "single owners" of the costs and benefits of legislation they impose. For instance, if a state raises taxes and spends the proceeds on police protection or sanitation, the state's own citizens will benefit and property values will rise. (While other expenditures, e.g., on education, may produce some spillovers, as educated citizens might move elsewhere, the appropriate response to such spillovers would seem to be some national expenditures on education, funded via national taxation, instead of giving individual states the ability to tax and spend without consequence.) Moreover, if "closed shop" laws make industries and workers more productive, then states will adopt such laws as a means of attracting labor and capital. Finally, the size of population flows seems large enough to suggest that working class individuals, that is, individuals supposedly helped by laws allowing closed shops and high taxes on the wealthy, and not just those in the upper income brackets, are moving to low-tax, right to work states.

It should be noted that the "federalism" mentioned here is not of a constitutional dimension, at least according to the jurisprudence of the Supreme Court. Under current Supreme Court case law, Congress could, if it wished, eliminate right to work laws altogether, allowing unions and employers to negotiate "closed shop" arrangements in any state. Indeed, that was the state of the law between passage of the National Labor Relations Act in 1935 and its amendment via the Taft-Hartley Act. (Though it should be noted that, in 1935, the Supreme Court still enforced limitations on Congress's Commerce power, thereby limiting the scope of the NLRA to business of the sort that, if crippled by a strike, would place a direct burden on interstate commerce.) Moreover, Congress could, if it wished, provide citizens in high tax states with tax federal credits that compensate citizens in high tax states for the tax premium they pay compared to their fellow citizens who live in other states. (Indeed, under the current tax code, taxpayers can generally deduct any state taxes they pay from their gross income, and this rule functions as a federal subsidy of sorts for high tax states.) Still, Congress has chosen NOT to take these steps, thereby facilitating competition among the states for labor and capital, competition that deters oppresive taxation and fosters labor and other laws friendly to wealth and job creation. In so doing, Congress seems sensitive to the admonition of James Wilson, perhaps the most under-appreciated of the Founding Fathers, pictured at the top of this post. According to Wilson, describing the appropriate boundaries between state and federal power at the Pennsylvania Ratifying Convention:
"Whatever object of government is confined in its operations and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States."
Fortunately Senator Robert Taft, pictured after Wilson above, and other supporters of the Taft-Hartley Act, agreed with Wilson.

Justice O'Connor's Prescient Support for Corporate Political Speech

More "Conservative" Than Chief Justice Rehnquist?

In a recent and informative analysis of the Supreme Court, David Savage of the Los Angeles Times concludes that the appointment of then-Judge Samuel Alito to replace Justice Sandra Day O'Connor shifted the Supreme Court "to the right." He also reports that opinion polling establishes that the public generally agrees with various decisions the Court has reached in recent years, including those that evidence a rightward tilt. That is the say (and I am extrapolating somewhat here), Savage concludes that Justice Alito is more likely to reach results congenial to constitutional conservatives --- and the American Public --- than was Justice O'Connor.

Savage provides several examples of decisions congenial to conservatives that the public approves. As he puts it:


"A strong majority [of the public] favored conservative rulings that prohibited “partial-birth” abortions, upheld a homeowner’s right to have a gun, and required voters to show photo identification."


Savage also notes that the public agreed with a couple decisions more congenial to those on the left, e.g., decisions allowing EPA regulation of carbon emissions (a decision, I will note, that did not involve application of the Constitution) as well as a decision striking down laws providing life in prison without parole for juveniles who commit heinous murders. Finally, Savage notes:

"There were two notable exceptions [that is, instances in which the public disagreed with the Court]. The public disagreed with the liberal decision two years ago that gave detainees at the U.S. prison in Guantanamo Bay, Cuba, a right to challenge their detention in a civilian court. Sixty-one percent of respondents said these noncitizen detainees should not be allowed to go to court. The public also disagreed with the conservative ruling earlier this year that gave corporations a right to spend freely to endorse or oppose candidates for election. By 58 percent to 40 percent, they disagreed with the notion that 'corporations ought to be able to spend their profits on TV advertisements urging voters to vote for or against candidates.'"

The decision protecting corporate speech, of course, was Citizens United v. Federal Election Commission, a decision advocated and then approved by this blog.

Savage points out that most of these decisions (including Citizens United and District of Columbia v. Heller, which found that the Second Amendment protects the individual right to bear arms) were decided 5-4, and asserts that Justice Alito's presence on the Court, replacing Justice O'connor, tipped the balance in favor of the more "conservative" result.

While it may be that Justice Alito has tilted the Court "to the right" on certain issues, e.g., the authority of states and Congress to regulate "partial birth abortion" (a practice that Senator Moynihan called "only minutes away from infanticide" and that then-Senator Biden voted to ban) his appointment did not tilt the Court on the question of free speech rights for corporations. Citizens United overruled Michigan Chamber of Commerce v. Austin, which sustained, by a vote of 6-3, Michigan's ban on speech by corporations for or against a candidate during an election. Justice Kennedy, the author of the majority opinion in Citizens United, issued a lengthy dissent in Michigan Chamber of Commerce, arguing that Michigan's ban on high value political speech violated the First Amendment. In so doing, he rejected the rationale for speech suppression articulated by the majority, namely, that corporations receive "special benefits" from the state, with the result that their speech does not reflect "actual public support" for the views expressed. He also rejected the argument that bans on corporate political speech protect shareholders from seeing "their" money (retained corporate earnings) used to support candidates with whom shareholders might disagree, an argument made by Justice Brennan in a concurrence. (It should be noted here that Michigan allowed shareholders and others affiliated with corporations to make contributions to so-called "segregated funds," and Justice Brennan argued that the ability to "speak" via these funds sufficed to protect shareholders' free speech rights. As I have argued elsewhere, this argument by Justice Brennan ignores the basic economic truth that relegating shareholders to individual contributions to segregated funds will result in significantly less speech than shareholders actually desire and for which shareholders would be willing to pay. Such speech is what economists call a collective good --- the party producing the good cannot exclude others from consuming it --- with the result that contributions by one shareholder to support production of the good benefit other shareholders as well. (Put more technically, from the perspective of individual shareholders, production of such speech is characterized by "non-excludability.") As a result, each shareholder will have an incentive to "free ride" on the contributions that other shareholders might make to support such speech. If each shareholder free rides in this way, no shareholder will contribute to support such speech, with the result that relegating corporations to reliance on such segregated funds will result in a severe burden on political speech that shareholders would otherwise support.)

Here is one of many "money quotes" from Justice Kennedy's opinion:

"Far more than the interest of the Chamber is at stake. We confront here society's interest in free and informed discussion on political issues, a discourse vital to the capacity for self-government. "In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue." First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 -785 (1978). There is little doubt that by silencing advocacy groups that operate in the corporate form and forbidding them to speak on electoral politics, Michigan's law suffers from both of these constitutional defects."

Importantly, Justice Kennedy did not speak alone. Instead, both Justice O'Connor and Justice Scalia joined his opinion in its entirety. That is to say, more than a decade before President Bush nominated then-Judge Alito to replace Justice O'Connor, Justice O'Connor had herself gone on record as opposing the sort of speech suppression schemes exemplified by the statute the Court sustained in Michigan Chamber of Commerce. Justice Kennedy's majority opinion in Citizens United was simply a reaffirmation of the views that he had expressed for himself, Justice O'Connor and Justice Scalia in his dissent in Michigan Chamber of Commerce.

As Savage reports, Justice Alito joined the Citizens United opinion, thereby reaching the same result that Justice O'connor would have reached, as evidenced by her dissenting vote in Michigan Chamber of Commerce. To be sure, Justice O'Connor may have felt compelled to follow Michigan Chamber of Commerce based on considerations of stare decisis, but there is no reason to believe she would have been more committed to stare decisis on this question than Justices Kennedy and Alito, for instance.

What, then, accounts for the Court's shift, from a 6-3 vote to sustain such suppression in 1990, to a 5-4 vote to condemn it last term? Two changes in personnel resulted in the shift. First, Justice Thomas, who joined Citizens United, replaced Justice Thurgood Marshall, who authored the majority opinion in Michigan Chamber of Commerce. Second, Chief Justice Roberts replaced Chief Justice Rehnquist, who had joined the majority opinion in Michigan Chamber of Commerce. The result was therefore a 5-4 majority in favor of protecting the free speech rights of corporations and the shareholders that employ the corporate form to express their views.

Some may be surprised that Chief Justice Rehnquist, often described as an "arch conservative," supported Court's decision in Michigan Chamber of Commerce. Don't conservatives always support the rights of big business, including corporations? Apparently not. While then-Chief Justice Rehnquist did not explain his vote in Michigan Chamber of Commerce, it's not hard to figure out why he joined the majority. After all, then Justice Rehnquist had dissented in First National Bank of Boston v. Belloti, where the Court struck down the effort by Massachusetts to suppress the speech of corporations during referenda campaigns. In that dissent, he argued that corporations are mere creatures of the state. As a result, he said, when states create corporations, providing them with limited liability and perpetual life, states need not empower such firms to employ the profits derived from these economic advantages in the political marketplace. Michigan Chamber of Commerce employed a similar rationale in sustaining Michigan's effort to suppress corporate political speech. Chief Justice Roberts, who replaced Chief Justice Rehnquist (for whom he had clerked), apparently rejected this line of reasoning when he joined Justice Kennedy's majority opinion in Citizens United. The divergence in views between these two "conservative" Chief Justices is further evidence that the fit between a Justice's (supposed) politics and his or her jurisprudence is not as tight as many apparently believe.

"So You Want to go to Law School?"

Here's a hillarious spoof on Law School and the legal profession in general. The item had about 50,000 views a few days ago and is now over 500,000.

http://www.youtube.com/watch?v=nMvARy0lBLE

Should Big Brother Ration Speech??

Speech Rations are DOWN!

In a characteristically superb Op-Ed, "The Democratic Version of Big Brother," George Will takes on Progressive efforts, now led by President Obama, to micro-manage political speech. Will reminds us of various Progressive-imposed "annoyances," including the 55 MPH speed limit, national ban on the incandescent light bulb (replaced, I might add, by one brimming with poisonous mercury (sorry Thomas Edison!), and suppression of showerheads that produce more water per minute than Washington bureaucrats can tolerate.

Will analogizes these Progressive initiatives to so-called "campaign finance reform," a 1970s project hereby the National Government "regulat[es] the quantity, timing and content of speech about government." During this election cycle, he says, political candidates for all offices in the United States, from local clerks to U.S. Senators, will spend a grand total of $4.2 billion on various forms of electioneering --- less than one half of the annual advertising budget of Procter and Gamble and more than Americans spend annually on yogurt. Apparently Will believes that it's actually healthy for Americans and organizations to which they belong to participate in the electoral process by, among other things,

"Those who are determined to reduce the quantity of political speech to what they consider the proper amount are the sort of people who know exactly how much water should come through our shower heads (no more than 2.5 gallons per minute, as stipulated by a 1992 law). Is it, however, really worrisome that Americans spend on political advocacy -- on determining who should make and administer the laws -- much less than they spend on potato chips ($7.1 billion a year)?"

Finally, Will calls out President Obama for his misleading attacks on the Chamber of Commerce, an organization, I might add, made up of over three million businesses, nearly all of them with 100 employees or fewer. As Will points out, the President of the United States has claimed, without adducing any evidence, that the U.S. Chamber of Commerce is spending money raised from foreign contributors, a charge the Chamber has vehemently denied. While baseless attacks are "par for the course" in our political culture, it's unfortunate to hear such attacks from a President who promised to change the tone in Washington and bring people together. Perhaps his advisors misinformed him about the source of the case paying for the Chamber's high value political speech.

Let me add two points to Will's cogent analysis.

First, it is ironic to say the least that Progressives, including President Obama, would complain about "too much money in politics." Then-Senator Obama promised to work with John McCain to ensure that both would take public financing during the general presidential election and thereby limit the additional amount he could raise from contributors. He then broke that promise, when it became clear that he could raise more money than his opponent, making no real effort to work out an agreement with Senator McCain. As a result, President Obama raised a total of $745 million to support his 2008 run for President, more than twice as much as John McCain and more than all the candidates for President in 2004 combined. Most Progressives seemed perfectly happy to see President Obama raise as much money as possible when necessary to outspend his opponents, even breaking his own promises to do so, but then cry "foul" when their opponents might beat them at their own game.

Second, the misleading attack on the Chamber of Commerce is analogous to the larger effort by Progressives to discredit and villify free speech by corporations and the shareholders who own them. As previously reported on this blog, President Obama misstated the holding of Citizens United and also mischaracterized the history of the caselaw leading up to that decision. Among other things, he claimed, incorrectly, that the Citizens United Court had held that foreign corporations have a right to speak in connection with American elections, even though this issue was not before the Court.

The next chancellor of the D.C. Schools?

A friend has called my attention to a recent Op-Ed in the Washington Post by Courtland Milroy, praising Warren Buffet and D.C. Schools Chancellor Michele Rhee for offering a Leninist solution to the problem of urban education. (Before the reader takes umbrage with my use of the word "Leninist," he or she should note that Millroy himself concedes that Rhee is "sounding like Fidel Castro.")

Here's a summary of the Rhee/Buffet proposal, apparently endorsed, at least in principle, by Millroy:

"I believe we can solve the problems of urban education in our lifetimes and actualize education's power to reverse generational poverty," Rhee wrote. "But I am learning that it is a radical concept to even suggest this. Warren Buffett [the billionaire investor] framed the problem for me once in a way that clarified how basic our most stubborn obstacles are. He said it would be easy to solve today's problems in urban education. 'Make private schools illegal,' he said, 'and assign every child to a public school by random lottery.' " (emphasis added)

It is perplexing to say the least that three otherwise very intelligent and public-spirited people would advocate such a solution, even in partial jest. For one thing the scheme, throwing people in jail for opening a private school --- would entail a frightening invasion of one our most basic civil liberties --- the right of families to choose religious schools for their children. See Pierce v. Society of Sisters, 268 U.S. 510 (1925). The plan would also lead to an exodus from Washington D.C. of families able to move elsewhere, unless Buffet/Rhee/Millroy would also ban such out-migration, thereby further eroding the city's precarious tax base and undermining funding for education.

More fundamentally, such a plan contravenes one of the basic postulates of a free society, namely, that decentralized competition, and not coercively-imposed state-monopoly, produces the highest quality product at the lowest possible cost. To be sure, there is a strong argument for state subsidies of education, because individual families cannot capture the full benefits of investments they make in the children's education. Plus, certain imperfections in the capital market can prevent families of modest means from borrowing the funds necessary to fund, say, a high quality K-12 education. However, even a compelling argument for state subsidy does not justify coercive state control over the means of producing education. All of us would support state subsidies that help the poor purchase necessities like food and clothing. Does that mean, however, that the State must also own the nation's farms and grocery stores, installing a Chancellor of Nutrition to oversee the "Foodstuffs Sector?" Most would chuckle at such an Orwellian proposal.

Indeed, imagine if, instead of education, we were discussing the production of software. Would Buffet, Rhee or Millroy argue that the State should outlaw private software companies, take over Microsoft, and install the firm as a national software monopoly? Would we rely on an elected or appointed "National Software Board" to oversee the development, production, distribution and marketing of software? Of course not. Indeed, most applauded when the national government filed suit against Microsoft, which had obtained a monopoly by providing a product that consumers preferred and then maintained its monopoly position by employing practices that, while questionable, did not employ the sort of state coercion that Rhee, Buffet and Millroy seem to applaud.

Simply put, the problem with our educational system is not too much freedom --- the problem is a deficit of freedom. Our university system --- a highly competitive mix of public and private colleges and universities --- is the envy of the world, drawing hundreds of thousands of foreign students. (A recent study by the Times of London found that 18 of the world's top 25 universities are American. The top five are private universities.) Does anyone think we could improve the system by banning private colleges and universities and assigning students by lot to the remaining public universities? (Recall in this connection that our best private universities train many of the faculty who then teach and perform research at our public universities.) If not, then why adopt such a strategy for K-12 education?

While Millroy, Rhee and Buffet press for greater centralization, states like Minnesota and Wisconsin have moved in the other direction, promoting public school choice and facilitating the formation of charter schools, the latter of which advertise in an effort to compete with more standard "public schools." Under this approach, state money follows the student; schools that fail see their enrollments fall as students choose other schools, be they traditional "public" or charter schools. Plus, contrary to the Rhee/Buffet/Millroy plan, Minnesota and Wisconsin actually allow private schools to operate in the state! Moreover, between 2004 and 2009, public high school graduation rates in Minnesota's largest city, Minneapolis, rose from 54.5 percent to 76.3 percent. Not surprisingly, there is no movement in Minnesota to ban private schools or charter schools. Unlike Rhee, Buffet and Millroy, Minnesotans apparently understand what the Supreme Court said more than 80 years ago:

"The fundamental theory of liberty on which all governments of this union repose excludes any general power of the state to stadardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

Pierce v. Society of Sisters, 268 U.S. 510 (1925).

Enough said!