Many of the books I cite in By the People were e-book editions, few of which let the reader know the page numbers of the print version. Most of the technical articles, magazine articles, reports, and databases I cite were found on the Internet. In both cases, standards for citations are still evolving. I have followed the Chicago style with a few simplifying adaptations. For e-books, I give the chapter from which my material was drawn, and the figure or table number when appropriate. For sources taken from the Internet, I give the website’s name and the URL for the home page. I do not give the specific web page because websites change their indexes frequently. Nor do I include the date when I accessed the website; if the page no longer exists when you read the book, knowing that it did at some particular date in the past does not seem helpful. For the many Supreme Court decisions cited in Parts I and II, I give the standard identifying information. The full text of all the decisions may be found on a single website, Justia (www.justia.com).
The full citations of articles in newspapers, magazines, and websites are given in the notes. The bibliography is reserved for books, journal articles, and other scholarly works.
Prologue: The Paradox
1. The text gives the version that came to be treated as the definition of modern Republicanism and that Eisenhower did not disown. It is actually condensed from this passage in Eisenhower’s remarks at a Lincoln Day Box Supper on February 5, 1954: “So that here we have, really, the compound, the overall philosophy of Lincoln: in all those things which deal with people, be liberal, be human. In all those things which deal with the people’s money or their economy, or their form of government, be conservative—and don’t be afraid to use the word” (www.presidency.ucsb.edu).
2. Arthur Krock (1960), “In the Nation,” New York Times, February 28.
3. Charles Frankel (1960), “A Liberal Is a Liberal Is a Liberal—,” New York Times, February 28.
4. Two classic conservative works published in 1953, Russell Kirk’s The Conservative Mind and Robert Nisbet’s The Quest for Community, contributed to a revival of classic conservative thought, but they do not count as part of the Madisonian resurgence.
5. The most notable were the Mercatus Center (1980), Property and Environment Research Center (1980), National Center for Policy Analysis (1983), Competitive Enterprise Institute (1984), Heartland Institute (1984), Independent Institute (1986), and Acton Institute (1990). The Hudson Institute, founded in 1961 by Herman Kahn and originally focused on international affairs, developed a strong program of free-market domestic studies after Kahn’s death in 1983. I have limited this list to organizations that follow the think-tank model: a staff of full-time scholars who produce original policy studies. This list omits groups that are on the social-conservative end of the spectrum, advocacy groups, more than sixty state-level policy organizations, and other organizations promoting conservative or libertarian ideas, such as the Liberty Fund, Reason Foundation, Institute for Humane Studies, Intercollegiate Studies Institute, and Federalist Society. I discuss the organizations that litigate Madisonian legal cases in chapter 8.
6. The Code of Federal Regulations represents all the regulations currently in force, and must be distinguished from another statistic that is often used, the number of pages published in the Federal Register in a given year.
7. Murray (1984), 244.
8. Office of Management and Budget, “Historical Budget Data” (www.whitehouse.gov/omb).
9. A spreadsheet showing pages in the CFR from 1938 to 2013 is on the website for the Federal Register, but hard to find. The URL that worked as of December 2, 2014, was www.federalregister.gov/uploads/2014/04/OFR-STATISTICS-CHARTS-ALL1-1-1-2013.xls.
10. These counts were assembled from Wikipedia pages showing cabinet offices and lists compiled by the author from “Budgets of the United States Government,” Government Printing Office (www.gpo.gov).
11. I conducted this exercise near the end of 2013. When I set out to check it in October 2014, I was unable to find the interactive organization chart I had used previously. I further discovered that sometime between January and October 2014, the Office of Health, Safety and Security had been moved, and was now under the Office of the Under Secretary for Management and Performance. But when I tried to access its organization chart, I was routed to a page that I was told does not exist. Rather than find a new example, I decided to leave the description in the text unchanged. Insofar as the point of that description is to convey how opaque the bureaucracy has become to outsiders, I decided that the results of my attempt to check back a year later amounted to QED. For the most recent DOE organization chart as I write, go to www.energy.gov.
12. This text is very similar to the text on page 127 of DiIulio (2014). A little explanation is in order. When the writing of By the People was well along, John DiIulio asked me to contribute a response to his forthcoming book, Bring Back the Bureaucrats. Coincidentally, his topic—the need to increase the number of federal employees and decrease the federal government’s reliance on contractors—touched on several themes of By the People. I therefore lifted small pieces from various places in the draft of By the People and incorporated them into my essay for Bring Back the Bureaucrats. It’s an odd situation. Authors often incorporate text from previously published work into a new book (I have done so with three of my own previously published pieces in By the People), but I’ve never heard of text being lifted from an unpublished manuscript and incorporated into a piece that is published before the original source of the text appears. But that’s what happened in this case.
13. Statistical Abstract of the United States 1963. Washington, DC: US Bureau of the Census, Table 575; Jessie and Tarleton (2014), 2.
14. DiIulio (2014), 17–18.
15. Ibid., 18.
16. Office of Management and Budget, “Historical Budget Data,” www.whitehouse.gov/omb.
Chapter 1. A Broken Constitution
1. Statistical Abstract of the United States 1928. Washington, DC: US Bureau of the Census, Table 185.
2. Scott v. Sandford, 60 U.S. 393 (1856); Slaughterhouse Cases, 83 U.S. 36 (1872); Plessy v. Ferguson, 163 U.S. 537 (1896).
3. Goldberg (2007), chapter 3.
4. Goodnow (1911), 9–10.
5. Ibid., 2.
6. Epstein (2006), 3.
7. Wilson (1913), 56–57.
8. Louis D. Brandeis, “The Living Law,” Illinois Law Review 10, 1917, quoted in Epstein (2006), 4.
9. The erosion began in 1934 with the Court’s ruling in Home Building & Loan Association v. Blaisdell (290 U.S. 398) that a Minnesota law retroactively changing the terms of existing mortgages was constitutional. The Minnesota legislature appeared to have obviously impaired the obligation of contracts with a law that authorized the retroactive extension of the time during which mortgagers could redeem their mortgages from foreclosure. But how could anyone object to using the power of the state to help farmers trying to survive the Great Depression hang on to their farms? Hard cases make bad law. The five-justice majority rationalized its decision on various grounds, among them that the Minnesota law affected the remedy given by the legislature to enforce the obligations of a contract, not the obligations themselves, and that the force of the Contracts Clause must be balanced against the state’s obligation to protect its citizens in an emergency situation. In his dissent, Justice Sutherland was biting in his condemnation of the decision and prescient about its consequences. The direct effect of the Minnesota legislation was bad enough, he wrote, but it was “of trivial significance compared with the far more serious and dangerous inroads upon the limitations of the Constitution which are almost certain to come.”
Blaisdell was reinforced by the Court’s ruling in 1935 that Congress’s retroactive voiding of “gold clauses” in contracts was constitutional. As part of FDR’s steps to take the United States off the gold standard and remove gold from the hands of Americans, Congress had passed a joint resolution that canceled the validity of all gold clauses. At that time, “gold clauses” were common in contracts, giving the creditor the option of receiving payment in gold. It was a hedge against inflation. To see what the congressional resolution meant, imagine that you were to give the buyer of your home a thirty-year mortgage with a floating interest rate based on the prime rate (your hedge against inflation), and the next year the government passed a law saying that floating interest rates are illegal and your mortgage will now be paid off for all thirty years at the 4 percent rate that applied when you sold your house. That’s comparable to what the cancellation of the gold clauses did. In four cases that came to the Supreme Court in 1935, known as the Gold Clause Cases, the Supreme Court found the congressional resolution to be constitutional. The Court’s rationale was that Congress was exercising an enumerated power (the power to regulate the value of money), and that gold clauses presented a threat to Congress’s control of the monetary system.
10. Schechter Poultry Corp. et al. v. United States, 295 U.S. 495 (1935), emphasis added.
11. The standard narrative has been around since the New Deal. A well-regarded recent statement of it is Leuchtenburg (1995).
12. Cushman (1998).
13. Keynes’s magnum opus, The General Theory of Employment, Interest, and Money, was published in 1936.
14. Most recently, a major crash had occurred in 1921, but its effects dissipated in a matter of months. See Grant (2014). The notable exception was the “Long Depression” of 1873–1879.
15. Ivan Pongracic Jr. (2007), “The Great Depression According to Milton Friedman,” The Freeman, September 1 (www.fee.org).
16. The words also appear in the preamble—“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America”—but that use was seldom invoked as a potential loophole. In this quotation and those in the text, I conform capitalization and punctuation to contemporary usage.
17. Hamilton, Madison, and Jay (1787), #41.
18. Natelson (2003), 45–46.
19. From Madison’s Records of the Federal Convention of 1787 (Max Farrand ed., 1911), quoted in Natelson (2003), 46. Hamilton revealed those anomalous sentiments in a six-hour speech on June 18, during which he inveighed against democracy and proposed a system that, among other things, would have a president and senators that, once elected, would serve for life on “good behavior.” See Chernow (2004), 231–33. In The Federalist, Hamilton alludes to the phrase “general welfare” only once, in #23, quoting the Articles of Confederation, section VIII, about the obligation of the states to supply support for national defense. See Hamilton, Madison, and Jay (1787), #23.
20. Helvering v. Davis, 301 U.S. 619, at 301 (1937). To make the quotation more readable, I have omitted the citations following the first sentence and the one following “settled by decision.” The former citations were “Constitution, Art. I, section 8; United States v. Butler, 297 U.S. 1, 65; Seward Machine Co. v. Davis, supra.” The latter was “United States v. Butler, supra.” The case cited twice, Butler, was a harbinger. Six justices agreed in Butler that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”
21. Apparently Hamilton never supported the limits on the federal government imposed by the Constitutional Convention. As early as 1782 (on July 4, perhaps significantly), he had written that “there is something noble and magnificent in the perspective of a great federal republic … but there is something proportionably diminutive and contemptible in the prospect of a number of petty states, with the appearance only of union, jarring, jealous, and perverse, without any determined direction, fluctuating and unhappy at home, weak and insignificant by their dissentions, in the eyes of other nations.” See Hamilton (1904), vol. 1, 286–87. In a paper written in September 1787, just days after the Constitutional Convention adjourned, he looked forward to a Washington presidency in which the national government may “triumph altogether over the state governments and reduce them into an entire subordination.” See Natelson (2003), 47.
Someone who did not know about Hamilton’s position in Philadelphia couldn’t possibly have imagined it by reading The Federalist. Only hindsight lets us see foreshadowings. In #31, Hamilton wrote, “A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care,” but without suggesting that the “objects committed to its care” went beyond those enumerated in the Constitution. He wrote in #70, “Energy in the executive is a leading character in the definition of good government,” but that was followed by an extended defense of a single executive rather than a committee, and by assurances that the Constitution protected against broad presidential power. During New York’s ratifying convention in Poughkeepsie, Hamilton’s defense of the powers of the states and dismissal of Anti-Federalist fears about a strong central government were so eloquent that he was accused by his fellow New York delegate to the Constitutional Convention of saying one thing in Philadelphia and another in Poughkeepsie. See Chernow (2004), 266.
22. Annals of Congress (1834–56), James Madison, House of Representatives, June 8, 1789. The argument against a bill of rights to which Madison alludes was also made by Hamilton in Federalist #84.
23. For a review of the various subsequent interpretations of the Ninth Amendment, see Barnett (2004), xii and chapter 9.
24. Lessee of Livingston v. Moore, 32 U.S. 469 (1833), and Scott v. Sandford, 60 U.S. 393 (1856).
25. Thayer (1893).
26. In Lochner, the Court struck down a New York law that limited the number of hours bakers could work on grounds that it constituted “unreasonable, unnecessary, and arbitrary interference of the individual … to enter into those contracts … appropriate or necessary for the support of himself or his family.” See Lochner v. New York, 198 U.S. 45 (1905). The New York law was written to protect large bakeries against smaller ones that had gained a competitive advantage by working longer hours.
27. In effect, the Presumption of Constitutionality Doctrine said to complaining citizens, “Maybe one of your rights was technically violated, but the legislature had a plausible reason for what it was trying to do. You can’t prove otherwise. You have no case.” Even before it was incorporated into constitutional jurisprudence, the growing popularity of the Presumption of Constitutionality Doctrine among legal scholars represented a profoundly important shift among the legal elite, away from a view of the United States as a republic centered on the protection of individual rights and toward a view of the United States as a democracy centered on majority rule.
28. O’Gorman & Young, Inc., v. Hartford Fire Insurance Co., 282 U.S. at 258 (1931).
29. The defendant, Leo Nebbia, had been convicted of selling two quarts of milk and a five-cent loaf of bread for eighteen cents, when New York’s Milk Control Board had set the price of milk at nine cents a quart. Nebbia filed suit on grounds that the New York statute violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and those were the grounds on which the Court ruled. But surely (a naïve reader of the Constitution would assume) his freedom to sell something he owned at a price that the customer was willing to pay easily fell under the Ninth Amendment as well. No, said the Supreme Court. For decades, the Court had approved of state regulation of rates in industries that were inclined toward monopoly power (most notoriously, the railroads operating in the west in the latter part of the nineteenth century). Justice Roberts justified the action of the Milk Control Board on grounds that rate regulation had sometimes been used in situations not involving monopoly. That much was correct, Richard Epstein acknowledges, “but in his willingness to extend rate regulation to ordinary competitive transactions, he never once articulated a limiting principle on how far state regulation could go, a point that generated much unease among the more classically liberal justices.” See Epstein (in press). Nebbia left the barn door wide open.
30. An important intervening case was West Coast Hotel v. Parrish, 300 U.S. 379 (1937), in which the Court upheld the validity of the same kind of minimum-wage legislation that it had voided (thereby getting the Court in such hot water) in Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
31. United States v. Carolene Products Co., 304 U.S. 144 at 152 (1938), emphasis added.
32. Levy and Mellor (2008), 192.
33. Barnett (2008) points out that in Carolene Products and other key decisions, “the New Deal Court only disparaged the unenumerated rights retained by the people; it did not deny them altogether.” Barnett argues that complete denial was left to the Warren Court in its decision in Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. at 487–88 (1955), when the Court ruled that a hypothetical rationale, or one concocted ex post, was sufficient to provide a “rational basis.” See Barnett (2008), 1484–86.
34. United States v. Carolene Products Co., 304 U.S. 144 (1938).
35. In the words of Footnote Four, “legislation which restricts those political processes which can ordinarily be expected to bring about the repeal of undesirable legislation.” Ibid.
36. Ibid.
37. United States v. Lopez, 514 U.S. 585 (1995).
38. Barnett (2001).
39. In the first major case, Gibbons v. Ogden, 22 U.S. 1 (1824), Chief Justice Marshall asserted Congress’s affirmative power to issue regulations governing interstate commerce, but the substance of the decision was to strike down a New York law that impeded an open national transportation market. Gibbons v. Ogden also specified that the transportation within the interior of the state would not be subject to federal oversight under the Commerce Clause. Subsequent cases extended the precedent of Ogden, leading to a legal term, the dormant Commerce Clause. The Commerce Clause was supposed to ensure that interstate commerce remained open and competitive, which in turn meant voiding state-level efforts to impede open and competitive markets. At the same time, those decisions left space for states to impose regulations or conduct activities that might have indirect effects on interstate commerce, but were justified on other appropriate grounds (e.g., in Willson v. Black-Bird Creek Marsh Co., 27 U.S. 245 [1829]). The New Deal Supreme Court used Ogden to justify Wickard v. Filburn, and it continues to be cited by liberal jurists, but Michael Greve’s observation on such interpretations is apposite: “But while some general statements in Marshall’s opinion [in Gibbons] may suggest such an interpretation, his opinion also rattles off an ‘immense’ mass of functions not surrendered to the federal government, including ‘inspection laws, health laws of every description, as well as laws for regulating the internal commerce of a State.’ Gibbons at 203. There, one would think, goes most of the Environmental Protection Agency, the Food and Drug Administration, and the Occupational Safety and Health Administration.” Greve (1999), 153, emphasis in the original. Richard Epstein points out that Gibbons was followed by an unbroken line of consistent cases that rejected the relevance of indirect effects to interpretation of the Commerce Clause prior to Wickard. Epstein (1987), 1432–43.
The major expansion of the Commerce Clause during the nineteenth century occurred in response to the passage of the Sherman Anti-Trust Act through United States v. E.C. Knight Co., 156 U.S. 1 (1895), in which the Court held that price-fixing cartels based on mergers of companies across states met the constitutional test of affecting interstate commerce. This expansion of the Commerce Clause, described as “sensible but measured” by a critic as severe as Richard Epstein, left a Commerce Clause that, in practice, still meant something intelligible to ordinary readers of Article 1, Section 8—which is to say, the Supreme Court agreed that Congress had power to regulate commerce among the several states when an issue arose that really did involve an impediment to buying, selling, and bartering, and really did involve an activity that crossed state lines. See Epstein (2006), 33.
40. In the Shreveport rate cases (1914), the Supreme Court ruled that the Interstate Commerce Commission could regulate the shipping rates of a railroad that operates within a single state if it competed with railroads that operated across states. Six years later, Congress passed the Transportation Act of 1920, authorizing comprehensive federal rate regulation over the entire railroad system, including all intrastate lines. The constitutionality of the act was sustained by the Supreme Court in Wisconsin Railroad Commission v. Chicago, Burlington & Quincy Railroad, 257 U.S. 563 (1922). In the Shreveport case, the Interstate Commerce Commission introduced protectionism for interstate railway carriers rather than removing an impediment to open competition. The Transportation Act of 1920 brought under federal purview large chunks of the railway system—railroads operating within a single state, even if they didn’t compete with interstate rail carriers—that had previously been exempt.
41. See Berger (1996) for an explication of the jurisprudence on the Commerce Clause.
42. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
43. Kozinski (1995), 5.
44. The Second Amendment decision was District of Columbia v. Heller, 554 U.S. 570 (2008). The First Amendment decision was McCutcheon et al. v. Federal Election Commission, 572 U.S. ___ (2014). The key decision regarding the Commerce Clause was United States v. Lopez, 514 U.S. 585 (1995), followed by United States v. Morrison, U.S. 598 (2000), and Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001).
45. Segregation had been compulsory in the states that had made up the Confederacy, plus Delaware, Kentucky, Maryland, Missouri, Oklahoma, and West Virginia. Segregation had been optional in Kansas, New Mexico, Arizona, and Colorado.
46. Lawson (1994), 1236.
47. Thomas Jefferson to Edward Carrington, Paris, May 27, 1788. Thomas Jefferson Foundation (www.monticello.org).
48. Hamilton, Madison, and Jay (1787), #51.
Chapter 2. A Lawless Legal System
1. Locke (1689), book 2, chapter 18, section 202.
2. Clarke (1962), 36.
3. Howard (2014), chapter 2, “Rethinking the Rule of Law,” makes many of the same points as this section of my chapter 2—sometimes so similarly that I must say explicitly that my draft was completed before I came across The Rule of Nobody.
4. The same problem usually applies to people who are sued by another private party, but in some cases (e.g., small-claims courts) an inexpensive option is available.
5. The relevant Latin phrase is “Actus non facit reum nisi mens sit rea,” which translates as “The act is not culpable unless the mind is guilty.”
6. The account of federal law through the nineteenth century is drawn from Strazella (1998), 5–6. The estimates of the number of federal laws from the last third of the nineteenth century through 1990–99 is based on the data in “Chart 2, Percent of Statutory Sections Enacted by Time Period,” page 9. This material is integrated with the count of actual federal crimes in 1983, 2000, and 2007, reported in Baker (2008).
7. Silverglate (2009) and Healy (2004).
8. It is also known as the “Dotterweich-Park Doctrine” after the name of two key Supreme Court cases, United States v. Dotterweich, 320 U.S. 277 (1943), and United States v. Park, 421 U.S. 658 (1975).
9. Dotterweich, 320 U.S. at 281.
10. Morissette v. United States, 342 U.S. 246, 256 (1952).
11. United States v. Park, 421 U.S. 658 (1975).
12. Edward Hanousek, Jr. v. United States, 176 F.3d 1116 (9th Cir. 1999).
13. Clarence Thomas, dissent from the denial of certiorari in Hanousek v. United States, January 10, 2000.
14. “Storage bins shall be provided with gaskets and locks or latches to keep the cover closed, or other equivalent devices in order to insure the dust tightness of the cover. Covers at openings where an employee may enter the bin shall also be provided with a hasp and a lock, so located that the employee may lock the cover in the open position whenever it is necessary to enter the bin.” Regulation 1910.263(d)(6)(ii), OSHA website (www.osha.gov).
15. OSHA Manuals for Physicians, Dentists, and Veterinarians (www.oshamanual.com).
16. DeLong (2004), 15.
17. Hamilton, Madison, and Jay (1787), #62. The most widely used contemporary definition of the “rule of law” was laid out by legal philosopher Lon Fuller in his 1963 Storrs Lectures at the Yale Law School. See Fuller (1964), 39. The eight characteristics of the rule of law he specified were clarity, internal consistency, practicability, generality, public promulgation, prospectiveness (new laws should not be applied retroactively), broad consistency of the law over time, and congruence between the wording of the law and the way it is administered by the officials.
18. Madison was clear-eyed about the limits of specificity in a law. See Federalist #37, where he writes that “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.” Hamilton, Madison, and Jay (1787), #37. But the limits are not remotely approached by laws I am complaining about.
19. Public Law 107–204, 107th Congress. Text is available at the Securities and Exchange Commission website (www.sec.gov).
20. Public Law 111–148, 111th Congress. Text is available at the Government Printing Office website (www.gpo.gov).
21. Tax Payer Advocate Service of the Internal Revenue Service, 2012 Annual Report to Congress, available at the Internal Revenue Service website (www.irs.gov). The most common word count for the King James version of the Bible on the Internet is about 790,000, though some are over 800,000.
22. Howard (2014), 36.
23. For a discussion of the problems associated with assigning awards, and an experiment demonstrating how sensitive the amount of awards can be to the way the trial is conducted, see Poser, Bornstein, and McGorty (2003).
24. For an account of the changing status of written contracts, see Olson (1991), chapter 10.
25. For an example of how tortuous the requirements in mixed-motive cases are, read the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
26. Tim Wu (2007). “American Lawbreaking,” Slate, October 14 (www.slate.com).
27. Quoted in Healy (2004), introduction.
28. John Carroll, quoted in Anderson (2009), 12. For a detailed account of the Milken case by a member of his defense team, see Silverglate (2009), chapter 4.
29. DeLong (2004), chapter 2.
30. Quoted in Silverglate (2009), introduction.
31. Parker (2013), 415. For a complete discussion of the ways in which corporations are deterred from supporting employees who come under federal prosecution, see Hasnas (2005).
32. DeLong (2004), chapter 2.
33. For an account of just how far government officials can go in trying to put private citizens who refuse to cooperate out of business, read the account at the opening of the Supreme Court’s opinion in Wilkie v. Robbins, 551 U.S. 537 (2007), in which government officials of the Bureau of Land Management tried to drive a dude-ranch owner out of business. After reading that account, proceed to Justice Souter’s characterization of the behavior of the government officials. Souter concedes, “It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one’s lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse.” And yet, subsequently characterizing this as “hard bargaining” on the government’s part, Souter concludes for the majority that a lower court opinion should be reversed. The plaintiff had no grounds for judicial relief. Legislation was required.
34. Paul (1987), 9.
35. Kochan (1998), 60–65.
36. Levy and Mellor (2008), 157.
37. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 at 241 (1984), quoted in Sandefur (2006), 95.
38. Quoted in Sandefur (2006), 81.
39. Penn Central Transportation Co. v. New York, 438 U.S. at 123–24 (1978), quoted in Levy and Mellor (2008), 174.
40. Sandefur (2006), 79.
41. See Balko (2013); Radley Balko (2014), “And Now: The Criminalization of Parenthood,” Washington Post, July 14; Sarah Stillman (2013), “Taken,” New Yorker, August 12; and Michael Sallah, Robert O’Harrow Jr., and Stephen Rich (2014), “Stop and Seize,” Washington Post, September 6.
42. See Buckley (2013), Howard (1995), Howard (2009), Howard (2014), Howard (2002), Olson (1991), and Olson (2011).
43. Olson (1991), 280.
44. Blackstone (1769), 135.
45. Olson (1991), 2–3.
46. That is the title of Canon 28, which is still part of the ABA’s code, though now ignored.
47. Priest (2013), 250.
48. Greenman v. Yuba Power Prods., Inc., 59 Cal 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).
49. A seminal article is Coase (1960), and the venerable basic text is Posner (2014), originally published in 1972 and now in its ninth edition.
50. For an excellent account of the state of knowledge about the complications, see Viscusi (2013).
51. Rubin and Shepherd (2007).
52. Priest (2013), 252–53.
53. Documenting these kinds of costs of tort law has been done by several of the books I listed earlier. I particularly recommend Olson (1991) and Howard (2002).
54. Walrath v. Hanover Fire Ins. Co., 110 N.E. 426, 427 (N.Y. 1913), quoted in Olson (1991), 92.
55. This account of discovery is drawn from Olson (1991), chapter 5.
56. Arnstein v. Porter, 154 F.2d 464 (2nd Cir. 1946).
57. “In appraising the sufficiency of the complaint we follow, of course, the accepted rules that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
58. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 at 570 (2007). This new guideline was reinforced in Ashcroft v. Iqbal, 556 U.S. 662 (2009).
59. For a detailed discussion of the changes in discovery, see Olson (1991), chapter 6.
60. The current version of the rules for discovery (Rule 26) of the Federal Rules of Civil Procedure may be found at www.law.cornell.edu.
61. Olson (1991), 107.
62. International Shoe Co. v. Washington, 326 U.S. 310 (1945).
63. Olson (1991), 80.
64. Another crucial decision handed down by the New Deal Supreme Court was Erie Railroad Co. v. Tompkins, 304 U.S. 634 (1938). See Olson (1991), 82.
65. The incentives to work on contingency are also increased by federal law permitting multiple damages for job discrimination, discussed on page 58. The financial risks of losing a case are so great that corporations often agree to an out-of-court settlement even for the weakest cases.
66. Farhang (2010), 64.
67. Ibid., 63.
68. Prepared using the raw data from Farhang (2010), generously provided by the author. The operational definition of private enforcement regime was a provision either for plaintiff fee-shifting or multiple damages. Legislation that provided for both of those mechanisms is counted as having two private enforcement regimes.
69. Rate per 100,000 population, based on cases classified by the Administrative Office of the United States Courts as private/federal question/statutory cases, excluding prisoner petitions and deportation cases. See Farhang (2010), 272.
70. Farhang (2010), 10. This figure is derived from Farhang’s statement that a total of 165,000 have been filed, 97 percent of which were filed by private citizens.
71. Ibid., 74, Table 3.1.
72. Ibid., 74.
73. Priest (2013), 249.
74. The Association of Trial Lawyers of America changed its name to the American Association for Justice. For a specific example of how the trial lawyers’ lobby can block legislation, see Andrew Hawkins (2014), “Cuomo Won’t Push Scaffold-Law Reform This Year,” Crain’s New York Business, April 25 (www.crainsnewyork.com). For the extent of influence within a state, see Chris Dickerson (2012), “Trial Lawyers Spend $20M in N.Y. Politics,” Legal Newsline Legal Journal, December 12 (www.legalnewsline.com). For the trial lawyers’ strenuous efforts in the 2014 election, see Timothy Carney (2014), “Trial Lawyer Industry Tries to Buy a Democratic Majority,” Washington Examiner, October 24 (www.washingtonexaminer.com).
75. Three 1986 Supreme Court cases known as the “summary judgment trilogy” made it easier for judges to expedite litigation by issuing summary judgments. The real effects of these reforms are debated. Linda Mullenix concludes, “Simply stated, the trilogy has not resulted in federal judges granting or denying summary judgment in statistically significant ways than before the trilogy. Although the courts did experience a brief uptick in summary judgment dismissals in the immediate aftermath of the trilogy, things soon settled back to the summary judgment relative equilibrium that existed prior to the trilogy.” Mullenix (2012), 561–62. For more optimistic assessments see Cook (2013) and Elliott (2004).
Three Supreme Court cases, in 1993, 1997, and 1999, have led to what is known as the Daubert standard, named after the initial of the three cases, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which requires evidence that expert testimony meets basic standards of scientific legitimacy.
Important recent cases regarding class-action suits include Wal-Mart v. Dukes et al., 564 U.S. ___ (2011); AT&T Mobility v. Concepcion, 563 U.S. 321 (2011); American Express Co. et al. v. Italian Colors Restaurant et al., No. 12-133 (2013); and Comcast Corp. v. Behrend, 569 U.S. ___ (2013).
Chapter 3. An Extralegal State Within the State
1. Lawson (1994), 1248–49.
2. Under informal rule making, which applies to the great majority of rules, the agency is supposed to reflect upon the public comments and then publish a final regulation in the Federal Register. The regulation goes into effect thirty days after publication, during which time interested parties can ask the agency to amend or repeal the rule. See DeLeo (2008), 53.
3. Congress can legislatively stipulate a formal rule-making process that requires hearings, but this happens rarely. There are occasional examples of hybrid rule making, which allows some aspects of a hearing (limited cross-examination, presentation of rebuttal evidence). An even rarer form of rule making is negotiated, in which the agency and the affected parties jointly agree on a rule. DeLeo (2008), 53–66.
4. OIRA took on its regulatory review function in the early days of the Reagan administration. In 1993, the definition of significant was established by President Clinton’s Executive Order 12866. Under the current definition, a regulation is automatically deemed significant if it has an annual effect greater than $100 million. Other qualifying characteristics are that it is likely to have major adverse effects, create inconsistencies with actions taken by another agency, materially alter the budgetary effects of entitlements or other transfers, or raise novel legal or policy issues. See Sunstein (2013a), 1850–51. Cass Sunstein, administrator of OIRA during the Obama administration’s first term, summarizes OIRA’s activities during his term in office as follows: “OIRA reviewed 2,304 regulatory actions between January 21, 2009, and August 10, 2012. In that period, 320 actions, or about 14%, were approved without change; 161 actions, or about 7%, were withdrawn; and 1,758 actions, or about 76%, were approved ‘consistent with change.’ In assessing the importance of review, it is important to note that the words ‘consistent with change’ reveal that the published rule is different from the submitted rule, but do not specify the magnitude of the change. In some cases, the changes are minor, perhaps even cosmetic; in others, they are substantial.” Sunstein (2013a), 1847.
What do these percentages look like with regard to the entire body of new regulations added to the Code of Federal Regulations? According to the Congressional Research Service, 13,039 rules were added to the Code of Federal Regulations from 2009 to 2012. Prorating that number for January 21, 2009, to August 10, 2012, Sunstein’s figures refer to a universe of approximately 11,583 new rules. Relative to that universe, of which 20 percent were reviewed by OIRA, 1.4 percent of them were withdrawn and the other 98.6 were approved, almost all of them with changes, consisting of an unknown mix of significant and trivial changes. This is not to say that OIRA has been ineffective. On the contrary, Sunstein’s book about his time in office has a number of examples of bad regulations forestalled or changed for the better. See Sunstein (2013b). I will add that I wish Sunstein had remained at OIRA longer—if his attitudes toward regulation were more widely shared, we would have much better regulation. But after reading his account of how the review system works in Sunstein (2013a), the question is not why he left after three and a half years but how he survived psychologically unimpaired for even three and a half months.
5. Apart from these severe limitations on the restraining power of cost-benefit analyses, some regulations are statutorily exempt from cost-benefit analysis, and the requirement does not apply to independent commissions such as the FCC and the SEC.
6. Other categories not discussed in the main text are rule making in the area of military or foreign affairs; procedural rules about how an agency functions; rules concerning public property, loans, benefits, and contracts; statements about policy plans for the future; and “good-cause exceptions” based on an agency’s determination that notice and comment would be impracticable, unnecessary, or contrary to public interest. See DeLeo (2008), 64.
7. Michael S. Greve (2014), “Prescription for a Banana Republic,” Library of Law and Liberty, October 7 (www.libertylawsite).
8. Ibid.
9. Appeal of FTC Line Business Report Litigation, 595 F.2d at 703–704.
10. DeLeo (2008), 83.
11. United States v. Morton Salt Co., 338 U.S. 632, 642–643 (1950), emphasis added.
12. Clint Bolick, personal communication, October 12, 2014.
13. Camara v. Municipal Court, 387 U.S. at 538 (1967).
14. For a description of the ALJ’s appointment and tenure, see Barnett (2013), 804–8.
15. The discussion of the internal review process is taken from DeLeo (2008), chapter 4.
16. A concise review of this literature and the relevant court decisions may be found in Barnett (2013), 816–26.
17. The discussion of the review process is taken from DeLeo (2008), chapter 6. Section 701(a)(1) of the Administrative Procedure Act allows Congress to stipulate in the enabling legislation that no outside judicial review is possible. Congress has occasionally done so, but mostly in matters involving military affairs and intelligence agencies.
18. Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
19. Ibid., 837, 842–843.
20. DeLeo (2008), 200.
21. Gillette (2000), 102.
22. Hamburger (2014).
23. Ibid., conclusion.
24. Wayman v. Southard, 23 U.S. 1, 43 (1825).
25. Field v. Clark, 143 U.S. 649 (1892).
26. Pestritto (2007), 42.
27. Fukuyama (2014).
28. Woodrow Wilson, “Notes for Lectures at the Johns Hopkins,” January 26, 1891, quoted in Pestritto (2007), 41.
29. J. W. Hampton Jr. Co. v. United States, 276 U.S. 394, 409 (1928).
30. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
31. In NBC, the Court relied especially on the precedents in New York Central Securities Corp. v. United States, 287 U.S. 12 (1932), and Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134 (1940).
32. National Broadcasting Co., Inc. v. United States, 319 U.S. 190 (1943).
33. Yakus v. United States, 321 U.S. 414, 420 (1944).
34. Levy and Mellor (2008), 73.
35. Congress has the power to veto revisions within seven months of their promulgation.
36. Pollack (2011).
37. Chevron, 467 U.S. 837, 842–843 (1984).
38. Chevron deference is now limited to agency actions that have the “force of law,” excluding such things as a simple letter sent by an agency. See, for example, Christensen v. Harris County, 529 U.S. 576 (2000). Scalia wrote dissents for one portion of the decision in Barnhart v. Walton, 535 U.S. 212 (2002), while concurring in the decision as a whole, and dissented from United States v. Mead Corp, 533 U.S. 218 (2001), but neither of these involved arguments for limitations on Chevron deference.
39. Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001). In effect, Congress’s amendment of the Clean Air Act was so incoherent that it gave the EPA two illegitimate choices. As described by Levy and Mellor, the EPA had to “either set the standard for nonthreshold pollutants at zero, in direct contradiction of congressional intent, or arbitrarily select a nonzero standard at which adverse health effects would still exist.” See Levy and Mellor (2008), 76.
40. McCarthy (2014), 96–154. The subsequent examples are also drawn from that source. They constitute a small subset of all the items in McCarthy’s list.
41. Jeremy Herb (2014), “GAO, Taliban Prisoner Swap Violated Law,” Politico, August 21 (www.politico.com).
42. The twenty cases are detailed in Cruz (2013) and Cruz (2014). The twenty do not include unanimous Supreme Court rejections of cases for which the administration filed amicus briefs. If the Obama administration continues at the same pace, it will accumulate about double the 9–0 defeats for George W. Bush’s eight years.
43. I am referring to Court decisions regarding the president’s discretionary power to implement legislation as he sees fit. The 2012 Supreme Court decision validating the Affordable Care Act (National Federation of Independent Business et al. v. Sibelius, 567 U.S. ___ [2012]) and the pending case on the legitimacy of premium subsidies for states that have not established exchanges (King v. Burwell, No. 14-1158, 4th Cir. [2014]) are both about the meaning of the text of the Affordable Care Act, not the executive branch’s alterations of its provisions.
Chapter 4. A Systemically Corrupt Political System
1. Twain and Warner (1873).
2. See Higgs (1987), chapter 5, for a description of this period.
3. Henry B. Brown, quoted in Higgs (1987), 80.
4. Wettergreen (1988), 7.
5. Kaiser (2009), chapter 8.
6. Ibid., chapter 8. The first good data on the costs of political campaigns comes from 1974. The average cost of a House campaign was just $236,120 (this and all the rest of the numbers are in 2010 dollars). Senate campaigns, once every six years, averaged $1,935,002. We know that those numbers were necessarily much higher than they had been in the early 1960s, because television and polling costs for campaigns had been rising dramatically for a decade.
7. For example, money was sometimes taken from the corporate till and hidden with accounting tricks, or executives who made political contributions were compensated through year-end bonuses. See Mutch (1988), 166.
8. Quoted in Kaiser (2009), chapter 8.
9. Ibid., chapter 8.
10. Wettergreen (1988), 6.
11. Mann and Ornstein (2006), 52.
12. Ibid., 47–63.
13. Ornstein et al. (2013), Table 3-5.
14. Ibid., Table 3-2.
15. Kaiser (2009), chapter 8.
16. Ornstein et al. (2013), Table 3-10.
17. Legend has it that the word was coined by President Grant with reference to persons hanging around the Willard Hotel. But the Oxford English Dictionary shows lobby being used as a verb in its contemporary sense as early as 1850, referring to the lobby outside the House of Commons.
18. Ornstein et al. (2013), Table 5-2.
19. Quoted in Kaiser (2009), chapter 4.
20. Ryan Grim and Sabrina Siddiqui (2014), “Call Time for Congress Shows How Fundraising Dominates Bleak Work Life,” Huffington Post, January 8 (www.huffingtonpost.com).
21. Kennedy (2009), 486. See Howard (2014), 132–33 for more on this.
22. Kaiser (2009), chapter 8. Before 1975, most lobbying was done out of law firms.
23. General Accounting Office (1991).
24. Kaiser (2009), chapter 21.
25. Quoted in ibid., chapter 21.
26. Lewis (2013), 64.
27. Kelly Bit (2014), “Hedge Funds Trail Stocks for Fifth Year with 7.4% Return,” Bloomberg, January 8 (www.bloomberg.com/news).
28. Ziobrowski et al. (2004), described in Schweizer (2011), introduction.
29. Schweizer (2011), introduction.
30. Kaiser (2009), chapter 18.
31. Ibid., chapter 24.
32. Ibid., chapter 24.
33. Ibid., chapter 24.
34. Ibid., chapter 24.
35. Ibid., chapter 19.
36. Schweizer (2013), introduction.
37. Ibid., chapter 2. Schweizer used data from MapLight (www.maplight.org).
38. Quoted in ibid., chapter 2.
39. Hatch (2012), 3.
40. The criteria used by Citizens Against Government Wasted are: (1) requested by only one chamber of Congress, (2) not specifically authorized, (3) not competitively awarded, (4) not requested by the president, (5) greatly exceeds the president’s budget request or the previous year’s funding, (6) not the subject of congressional hearings, and (7) serves only a local or special interest (www.cagw.org).
41. Citizens Against Government Waste, “Congressional Pig Book” (www.cagw.org).
42. Kaiser (2009), chapter 24.
43. Fulmer, Knill, and Yu (2012), 1, 16.
44. Yu and Yu (2011), 1865.
45. For the full story of the creation of earmarks, see Kaiser (2009), chapter 5.
46. Congressional Research Service (2006).
47. Transparency International has created an index of corruption for 177 countries. The three I named were among the twenty most corrupt in 2013 (www.transparency.org).
48. Kaiser (2009), chapter 24.
49. For a quantitative analysis of effects on the revolving door (minor, even when confining the analysis to officially registered lobbyists), see Cain and Drutman (2014).
50. Erika Eichelberger (2013), “Washington’s Vanishing Lobbyists Hide Behind the Rules,” Mother Jones, April 9 (www.motherjones.com).
51. Lee Fang (2014), “Where Have All the Lobbyists Gone?” The Nation, March 10–17 (www.thenation.com).
52. Lewis (2013), 72.
53. Kaiser (2009), chapters 5–18; Mann and Ornstein (2006), chapter 3.
54. Kaiser (2009), chapter 22.
55. Quoted in ibid., chapter 19.
56. Quoted in Mann and Ornstein (2006), 5.
57. Ibid., 1–6.
58. Author’s analysis of federal budgets available from Office of Management and Budget, “Historical Budget Data,” whitehouse.gov/omb/budget/historicals. The categories of domestic spending included in the calculations were the following: Total general science, space, and technology; Total energy; Total natural resources and environment; Farm income stabilization; Agricultural research and services; Total transportation; Total community and regional development; Total education, training, employment, and social services; Total health (Medicare is a separate category from Total health); General retirement and disability insurance; Housing assistance; Other income security.
59. A table of pages in the Code of Federal Regulations from 1938 through 2013 may be downloaded from the Federal Register website. See note 9, prologue.
Chapter 5. Institutional Sclerosis and Advanced Democracy
1. In my view, the closest thing to one-sentence summaries of their respective mind-sets are Ronald Reagan’s line in his 1981 inaugural address, “In this present crisis, government is not the solution to our problem; government is the problem,” and George W. Bush’s line in a 2003 Labor Day speech in Richfield, Ohio, “We have a responsibility that when somebody hurts, government has got to move.” Quotations found at the American Presidency Project (www.presidency.ucsb.edu).
2. For accounts of earlier attempts to end the sugar subsidy, see Rauch (1999), 130–31.
3. Ibid., 193–96. The book was originally published in 1994 as Demosclerosis. In describing the thought experiment, I have substituted some details of my own for Rauch’s.
4. Ibid., 197.
5. Joe Weisenthal (2013), “The Four Things That Worry Jamie Dimon …,” Business Insider, February 4 (www.businessinsider.com).
6. Rauch (1999), 12.
7. Eberstadt (2012).
8. Author’s analysis of Social Security, Medicaid, Medicare, AFDC, and TANF data from various editions of the Statistical Abstract of the United States, US Census Bureau (www.census.gov), and Klemm (2000).
9. Jessie and Tarleton (2014), 2.
10. DiIulio (2014), 17–18.
11. Ibid., 18.
12. Author’s analysis of the Census Bureau’s voting and registration data available at www.census.gov.
13. Author’s analysis of General Social Surveys, available at www3.norc.org/GSS+Website/.
14. The GOP is facing a demographic headwind, but for the next few election cycles it is a zephyr rather than a gale. It seems impossible that the headwind is not already a gale, or even a hurricane. After all, we know from the national census that non-Latino whites (hereafter just whites) fell to 64 percent of the population in 2010, while Latinos continued their skyrocketing rise, now constituting 16 percent of the population, overtaking African Americans as the nation’s largest minority. We know from the National Election Pool exit polls, the source used by all the major news organizations, that Democrats captured large majorities of Latinos (averaging 64 percent of the vote), blacks (92 percent), and Asians (62 percent) in the four presidential elections from 2000 through 2012. The Census Bureau’s projections tell us that America’s minorities will continue to increase as a proportion of the population, with whites becoming a minority of all Americans in the early 2040s.
And yet, when these numbers are plugged into the standard arithmetic for predicting voting outcomes, the expected increase in the Democratic vote in 2016 is not 5, 6, or 7 percentage points. Nor even 1 or 2 percentage points. The demographic changes I just described may be expected to produce an increase in the Democratic presidential vote of just three-tenths of 1 percentage point.
That counterintuitive result is possible because of another set of numbers that goes into the arithmetic, also produced by the Census Bureau in periodic special surveys for the November Current Population survey: voter turnout. In the presidential elections from 2000 through 2008 (the 2012 figures aren’t available as I write), the percentage of Americans eighteen years and older who actually voted averaged 57 percent. But those percentages varied widely by ethnic group. Among whites, the average turnout was 64 percent. Among blacks, 57 percent. Among Latinos and Asians, just 29 percent.
That’s why the headwind is so feeble in the near term. Between 2012 and 2016, the Census Bureau estimates that the population of voting-age Latinos will increase by 3.9 million people, compared to an increase of just 1.8 million whites. But because of their much lower turnout, the expected increase in Latino voters is 9,513 fewer—yes, fewer—than the expected increase in white voters. The only reason that the Democrats can expect even a microscopic 0.3 percentage-point increase in the 2016 vote is because of an increase in the black voting-age population.
In the long term, the GOP will indeed face a gale. Much of the explanation for the low turnout of Latinos and Asians is that many are recent immigrants, are not yet citizens, and hence are not eligible to vote. Among citizens, turnout in presidential elections is already around 47 percent for Latinos and 45 percent for Asians. As time goes on, it is plausible that the percentage of Latinos and Asians who are citizens will increase, and that the propensity of Latinos and Asians to vote will eventually be about the same as the propensity of other Americans. To be specific, suppose I assume that the overall turnout rate for Latinos and Asians will linearly converge on the African American turnout rate of 57 percent, reaching that point by 2040. Leaving the other parameters unchanged, the expected Democratic vote for president will rise from 51 percent in 2012 to 55 percent in 2024 and to 64 percent by 2040. The original version of this discussion appeared on the AEI public policy blog on February 8, 2013, and includes links to the sources. Charles Murray (2013), “The GOP’s Electoral Collapse Is Postponed,” AEIdeas, February 8 (www.aei-ideas.org).
Chapter 6. On the Choice of Civil Disobedience
1. I am drawing from Weber (1918) and more generally from Fabienne (2014).
2. Quoted in Lipset (1996), 18.
3. Locke (1689).
4. Grund (1837), vol. 1, 265.
5. Ibid., 293.
6. Tocqueville (1838), vol. 2, part 2, chapter 8.
7. In any discussion of limited government, you are sure to hear from the left that the federal government began to expand from the beginning, with Thomas Jefferson’s approval of the Louisiana Purchase and Abraham Lincoln’s approval of federal participation in the building of the transcontinental railroad as prime exhibits. In reality, the departures from strict constitutional limits were remarkable for both their rarity and the gravity with which they were debated. The famous debates about whether the federal government should fund internal improvements are a case in point. As early as Jefferson’s administration, a limited federal role in aiding the National Road was authorized under special conditions that satisfied Jefferson of its constitutionality. Congress justified and Jefferson approved the National Road for two reasons. First, Congress did have the explicit power to establish and maintain post roads, and there was no existing road to the newly settled lands of the west that could be used for that purpose; second, a contractual arrangement for funding the road meant that the federal government would not be out of pocket. The new state of Ohio had entered into an agreement with the federal government whereby Ohio would not tax the proceeds from the sale of federal land for five years, in return for the federal government spending one-twentieth of the proceeds on the National Road. In the early 1830s, the costs of extensions to the federal road were returned to the states through which it went. Even so, Jefferson wanted a constitutional amendment adding authority for certain internal improvements as a new enumerated power. Madison, Monroe, Jackson, Polk, Pierce, and Buchanan—two Jeffersonian Republicans and four Jacksonian Democrats—also went on record, often using strong language, as saying that internal improvements were unconstitutional, though some small projects slipped through. The chief offender against the prohibition on funds for internal improvement was James Monroe (an Anti-Federalist during the ratification debate), who, despite his strong statement about the unconstitutionality of such expenditures in his first annual message to Congress, signed several bills in the last two years of his administration that provided modest sums to survey harbor obstructions and the routes of proposed roads and canals. See Eastman (2001), 82–83. For different interpretations of the importance of these exceptions, see Greve (2012), chapter 7, and Epstein (2014), 197–98. The only president who disagreed was John Quincy Adams, defeated after one term by Andrew Jackson in part because of the unpopularity of augmenting federal power. It should be noted that even when the Constitution provided for a federal role, pre–Civil War Congresses were sometimes slow to exercise their authority. Despite the Constitution’s explicit authorization of federal national bankruptcy laws, for example, only two such bills were passed from 1790 until the Civil War, and both of those were repealed within a few years of their passage. When the federal government intervened in state affairs, it was usually to assert the primacy of individual rights over state incursions on those rights. For example, the Constitution forbade states from weakening the obligations of private contracts, and the Supreme Court’s decisions on that topic uniformly used an expansive definition of contract, invalidating state laws that even came close to crossing the constitutional prohibition.
8. Grover Cleveland’s message to Congress vetoing the Texas Seed Bill, February 16, 1887, available at the Mises Institute website, www.mises.org.
9. Bryce (1903), 536–37.
10. In a poll conducted in August 2014, 11 percent of the respondents described themselves as libertarian and also knew what “libertarian” means. See Kiley (2014). Many who think of themselves as conservatives will also be persuaded by the Madisonian case for lost legitimacy, but coming up with any specific number must be an estimate. I base my 20 percent upper-bound estimate on May 2014 polls by AP/GfK (GfK is a leading market research agency) and NBC/Wall Street Journal finding, respectively, that 20 and 24 percent of respondents self-identified as supporters of the Tea Party movement. See also Bowman and Marsico (2014).
11. “Public Trust in Government, 1958–2013.” 2014. Pew Research Center for the People & the Press, November 13 (www.people-press.org). “CNN Poll: Trust in Government at All-Time Low,” Political Ticker Blog, August 8, 2014 (www.politicalticker.blogs.cnn.com).
12. While there are no data for breaking out how blacks in the late 1950s and early 1960s answered the question about trusting the federal government, there is reason to infer that their percentages would not have been much different from those of white Americans. African Americans, acutely conscious of the failure of America to live up to its ideals, saw the federal government as their protection against oppression at the state and local levels.
13. This discussion of the three compacts draws from Charles Murray (1997), “Americans Remain Wary of Washington,” Wall Street Journal, December 23.
14. The phrase appears in Jefferson’s draft of the Virginia Act for Establishing Religious Freedom.
15. Howard (2014), 139.
Chapter 7. The Ground Rules for Civil Disobedience
1. This example was made famous by Kohlberg (1981).
2. For more complete discussions of public goods, see Epstein (1985), 166–69, or Murray (1997), 11–17.
3. This logic justifies the use of tax dollars to fund education but does not require the government to run the school system.
4. Korematsu v. United States, 323 U.S. 214 (1944).
5. For an overview of the abuses of property rights, see Sandefur (2006).
6. Some of the abuses associated with wetlands arise from absurd interpretations of the Rivers and Harbors Appropriations Act of 1899 (33 United States Code Part 403).
7. Carpenter, Knepper, and Ross (2012) describe the proliferation of occupational licensing. See also Sandefur (2010).
8. Guerin and DelPo (2013).
9. Administrative Procedure Act, 5 U.S.C. § 706(a)(2).
10. The farm exemption does not apply if the farm has employee housing.
Chapter 8. Help for Ordinary Americans
1. From the FAQ page at the OSHA website, www.osha.gov.
2. Jung and Makowsky (2014), 3.
3. OSHA Inspections (2002), 3–4 (www.osha.gov).
4. For the complete list of civil and criminal enforcement actions, search for “Enforcement Annual Results Numbers at a Glance for Fiscal Year (FY) 2013” at the EPA website, www2.epa.gov.
5. Federalist Society website, www.fed-soc.org.
6. Institute for Justice website, www.ij.org; Goldwater Institute website, www.goldwaterinstitute.org; Pacific Legal Foundation website, www.pacificlegal.org.
Chapter 9. Treating Government as an Insurable Hazard
1. These activities are all described on the American Dental Association website, www.ada.org.
2. Census Bureau, “2011 County Business Patterns Data,” www.censtats.census.gov.
3. The seminal disquisition on the role of approbation in enabling limited government is Smith (1759).
4. Restatement (Second) of Contracts, §178 (1981). “Restatements of the Law,” of which the Restatement (Second) of Contracts is one, are developed by the American Law Institute and are used by lawyers and judges as the most authoritative statement of the principles of common law.
Chapter 10. From Systematic Civil Disobedience to a “No Harm, No Foul” Regulatory Regime
1. David W. Brown (2011), “In Praise of Bad Steve,” The Atlantic, October 6.
2. There is a huge literature on this issue. For an overview, see Sunstein (2009).
3. Five of the justices—Hugo Black, Stanley Reed, Felix Frankfurter, William Douglas, and Robert Jackson—were on the Court in both 1942 and 1954. Of the four who were not on the Court in 1942, two were Democrats nominated by Truman (Tom Clark and Sherman Minton) and two were Republicans, one nominated by Truman (Harold Burton) and the other nominated by Dwight Eisenhower (Earl Warren). The four not on the Court in 1954 were two Republicans nominated by Coolidge (Harlan Stone) and Hoover (Owen Roberts), and two Democrats (Frank Murphy and James Byrnes) nominated by FDR. Of the four new members of the Court in 1954, Minton and Burton were generally conservative (Minton, conspicuously liberal as a senator, voted much more conservatively when he reached the Supreme Court), and Clark had a mixed record. Only Warren was reliably liberal. Overall, the 1954 Court does not look like a noticeably more liberal Court than the one that decided Wickard in 1942.
4. Section 706 of the Administrative Procedure Act of 1946 reads as follows:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
5. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). The cases cited by the Court in support of this interpretation were McBee v. Bomar, 296 F.2d 235, 237 (6th Cir. 1961); In re: Josephson, 218 F.2d 174, 182 (1st Cir. 1954); Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (ND Cal. 1968); and Wong Wing Hang v. Immigration and Naturalization Serv., 360 F.2d 715, 719 (2nd Cir. 1966).
6. Overton, 401 U.S. 402 (1971), emphasis added. The Court revisited “arbitrary and capricious” in Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463 U.S. 29 (1983), in which it held that the National Highway Traffic Safety Administration’s rescission of the regulatory requirement for automatic seat belts was arbitrary and capricious. To me as a nonlawyer, it seems laughable that out of all the ways in which the regulatory state has behaved arbitrarily and capriciously, the one thing that the Supreme Court ruled was arbitrary and capricious was a regulatory agency’s decision to get rid of a regulation mandating one of the most foolish ideas for automotive safety ever concocted, the automatic seat belt. But I’m not a lawyer.
7. My thanks to Amy Korenvaes for suggesting that reality TV would be a terrific way to publicize the defense funds’ work, and for coming up with the title.
8. Howard (1995), 11–14. Howard’s book was published in 1995, so the details of the regulations I cite may have changed since then, but the tone of Howard’s account will sound grimly familiar to factory managers today.
9. 5 U.S.C. 706(2)(A).
10. This is a common feature of regulatory inspections. Braithwaite and Braithwaite (1995), 320, document that inspectors of nursing homes focus on ten to twenty regulations, but each inspector focuses on a different set. Cited in Howard (2014), 36.
11. The ways in which safety regulations backfire is the subject of a large literature. One of the most famous problems is the moral hazard introduced by safety equipment. Knowing (or thinking) they are protected from accident, people tend to engage in riskier behavior. You may have noticed this in yourself if you own two cars with different cornering abilities—you round the same corner at different speeds depending on which car you’re driving. When elaborate safety regulations are in place, people also get sloppier about planning for unlikely scenarios. The Kemeny Commission’s investigation of the Three Mile Island nuclear accident found that elaborate safety regulations had displaced the operators’ knowledge about the workings of the individual systems under their control, preventing them from knowing how to deal with combinations of small equipment failures that could have averted the accident. In still other cases, safety equipment that would be useful in one kind of accident makes matters worse in other kinds of accidents. The worst of the damage in the Deepwater Horizon oil spill in 2010 would probably have been avoided if the crew hadn’t directed the spewing mud and gas into a “safety” device that, in the prevailing circumstances, enveloped the rig in explosive gas. See Howard (2014), chapter 2, for a discussion of these and other cases.
12. Many libertarian readers are thinking to themselves that any company that has poisonous substances around with no labeling and no restricted access is leaving itself open to a gigantic lawsuit if an accident occurs, and everyone knows that. You could get rid of OSHA’s regulation altogether and the safety statistics wouldn’t change. I agree with that logic. Except for issues such as the environment, which involve genuine externalities, just about everything the regulatory state does could be done more efficiently through a properly designed tort system. I am convinced of that, but I am discussing realistic options for rolling back the regulatory state, and getting rid of the regulatory state altogether isn’t one of them.
13. Google “images for Sacketts’ home lot” for ground-level photographs and use Google Earth to see a bird’s-eye view of 1604 Kalispell Bay Road, Priest River, ID 83856.
14. The Sacketts won their case, but, incredibly, the EPA is still pursuing the Sacketts as I write (October 2014).
Chapter 11. A Necessary Crisis
1. Storage drums need reconditioning to cleanse them of whatever they previously contained—liquids such as paints, resins, tars, solvents, oils, acids, and adhesives—and to restore the drums’ shape and integrity.
2. This brief narrative is taken from the decision issued in 1985 by the United States District Court of New Hampshire, 630 F.Supp 1361 (1985).
3. The First Circuit affirmed the district court’s decision with two minor exceptions. 900 F.2d 419.
4. Breyer (1993), chapter 1.
5. Ibid.
6. Even water and sewage services can be objects of controversy. People in small towns who want to avoid development rationally fight against offers by the county or state to finance water and sewage systems, because requiring land to support individual wells and septic fields makes large housing developments uneconomic.
7. This account of the Forest Service draws from a longer discussion in Fukuyama (2014).
8. Murray (2008) documents this assertion for both K–12 and higher education.
9. I date the beginning of quantitative policy science to the massive study of the relationship of schools and family background to academic achievement mandated by Congress in the aftermath of the 1964 Civil Rights Act and directed by sociologist James Coleman in 1965–66, which employed the first major multivariate quantitative analysis (using regression analysis). The statistical theory of regression analysis had been known for decades, but until the advent of sufficiently advanced computers and software, multivariate analyses with several variables and adequate samples were impractical—the computational requirements were too great.
10. I’m assuming that it’s 2020 and the 174,545 pages in the Code of Federal Regulations as of 2012 have continued to increase at the 4,143-page-per-year average established during President Obama’s first four years.
11. Stein (1998), 32.
Chapter 12. The Return of Diversified America
1. Lyndon Johnson, December 9, 1964, remarks at a reception for new Democrats in Congress (www.presidency.ucsb.edu).
2. Fischer (1989).
3. Ibid., 227.
4. Ibid., 703.
5. Ibid., 680.
6. This account draws from Barone (2013), chapter 3.
7. Before the Irish arrived, Catholics were a significant presence only in parts of Maryland.
8. Barone (2013), 127.
9. I do not mention Chinese and Japanese immigration because it was so isolated to parts of the West Coast (and Hawaii, after the United States acquired Hawaii in 1898), and the numbers were so small. From the first census data in 1850 through 1960, the Chinese and Japanese never amounted to more than 0.2 percent and 0.3 percent of the population, respectively. Author’s analysis of decennial census data from Social Explorer (www.socialexplorer.com).
10. World War I did not have nearly as much effect as World War II. Only 2.7 million American young men were drafted to serve, less than a sixth of the number drafted in World War II, and the effort lasted just a year and a half. See Bruscino (2010), 6.
11. The National World War II Museum, “By the Numbers,” www.nationalww2museum.org.
12. Murray (1984), chapters 1–3.
13. I present that case in Murray (2012), Part I.
14. I’m referring to Dunbar’s number, based on the work of British anthropologist Robin Dunbar. See Dunbar (1992).
15. Why do I refer to “churches” instead of using a more inclusive term? Because I’m talking about religion as a source of social capital, and in the United States that means Christianity. In the General Social Surveys taken from 2000 to 2012, 94 percent of people who expressed a religious preference were Christian. Only in the largest cities are synagogues a significant source of social capital. Mosques are significant in only a handful of ethnic neighborhoods. Author’s analysis, General Social Survey, combined for 2000–2012.
16. Putnam (2000).
17. For a graphic description of one such distressed rural area (Harlan County, Kentucky), see Bishop (2008), 136–41.
18. Big cities comprise the 62 cities with more than 500,000 people. Satellites to major urban areas comprise the 1,112 cities or towns of any size that are in a contiguously urbanized area containing a city with at least 500,000 people. Most of these are suburbs. Small cities comprise the 1,464 stand-alone cities (i.e., not satellites to a nearby big city) of 25,000 to 499,999. Rural and small-city America refers to rural areas and to the 24,411 towns of fewer than 25,000 people that are not satellites to a large city.
The classifications are based on the 2010 census, the category of a place in the 917 Core Based Statistical Areas defined by the Census Bureau, and city populations. In reaching my definition of a “Greater X” for the fifty largest cities, you may be wondering if I checked the location of every town in America that was in an MSA with a city of 500,000 persons or more. I did not. Empirically, there is a high degree of consistency between population density and whether a place in an MSA with a big city is a satellite or a standalone, and a useful cutoff point is 2,000 persons per square mile. Even a little more than that, and places have a high probability of being a satellite; even a little lower than that, and places are almost always standalone towns or cities. I have no theory for 2,000. It just works out that way. After assuring myself of the high reliability of this indictor, I visually checked all towns that were in the 1,800–2,200 person range, plus the towns that were larger than 50,000 persons regardless of density.
19. I think that people in even the largest cities need a lot less oversight than they’re getting, but I acknowledge that this reflects my libertarian bias. When it comes to cities of 500,000 and smaller, the empirical case for my position becomes quite strong; it’s weaker for the largest cities.
20. Author’s analysis of decennial census data from Social Explorer (www.socialexplorer.com).
21. “Minorities Expected to Be Majority in 2050,” CNN, August 13, 2008, www.cnn.com.
22. Author’s analysis of 2010 census data from socialexplorer.com.
23. In this discussion, the most relevant issue is political power in a city. I therefore use the official city population, not the more accurate representation of contiguous urban population used in the discussion of size of place.
24. Jens Krogstad and Mark Lopez (2014), “Hispanic Nativity Shift: U.S. Births Drive Population Growth as Immigration Stalls,” Pew Research Hispanic Trends Project, April 29 (www.pewhispanic.org).
25. Barone (2013), 254–56.
26. The nineteen cities outside the former Confederacy with more than 100,000 African Americans in 2010 were, in descending order of their black populations, New York City, Los Angeles, Detroit, Philadelphia, Baltimore, Chicago, St. Louis, Cleveland, Washington, Newark, Cincinnati, Indianapolis, Las Vegas, Columbus, Minneapolis, Sacramento, Seattle, San Francisco, and Milwaukee.
27. Originally, the area known colloquially as Silicon Valley followed the Santa Clara Valley south of San Francisco, and was bounded roughly by San Jose on the south and Redwood City on the north. That area is still home to the most famous IT firms—Apple, Google, Intel, Cisco, and Oracle among them—but growth has now effectively extended Silicon Valley around the southern edge of San Francisco Bay to Fremont and Milpitas, southwest past San Jose, and northward to Burlingame. Silicon Valley thus defined has 1.7 million people.
28. Bishop (2008).
29. Most of the noncompetitive counties were in the South, where voters had a chance to vote for the first presidential candidate from the Deep South since 1808 (Charles Pinckney of South Carolina, who ran unsuccessfully against Thomas Jefferson in 1804 and James Madison in 1808). Andrew Jackson was born on the border of North and South Carolina, but lived as an adult in Tennessee. Subsequent Southern presidential candidates came from the mid-South.
30. Bishop (2008), 10, Table 1.1.
31. Alan Murray (2014), “The Divided States of America,” Wall Street Journal, June 12.
32. Ibid. For a quantitative measure of partisan conflict that goes back to 1891, see Azzimonti (2014).
33. Murray (2012).
34. Herrnstein and Murray (1994), chapter 1; Murray (2012), chapter 2.
35. Florida (2012), Appendix.
Chapter 13. The Best of Times
1. Randall Stross (2013), “Wearing a Badge, and a Video Camera,” New York Times, April 6.
2. Airbnb, “About Us,” www.airbnb.com.
3. Some examples: Olivia Nuzzi (2014), “Uber’s Biggest Problem Isn’t Surge Pricing. What If It’s Sexual Harassment by Drivers?,” The Daily Beast, March 28 (www.thedailybeast.com); Jeff Bercovici (2014), “Uber’s Ratings Terrorize Drivers and Trick Riders. Why Not Fix Them,” Forbes, August 14 (www.forbes.com). For a good summary of the issues swirling around Uber and the taxi companies, see Emily Badger (2014), “Taxi Medallions Have Been the Best Investment in America for Years. Now Uber May Be Changing That,” Washington Post, November 27 (www.washingtonpost.com).
4. Luz Lazo (2014), “Cab Companies Unite Against Uber and Other Ride-Share Services,” Washington Post, August 10.
5. Hard-core progressives do see Uber as an ideological issue—and rightly so, because Uber challenges the foundations of the regulatory state. For an impassioned denunciation of Uber and the threat it poses, see Andrew Leonard (2014), “Why Uber Must Be Stopped,” Salon, August 31 (www.salon.com).
6. For a description of Uber’s resources in fighting city hall, see Rosalind Helderman (2014), “Uber Pressures Regulators by Mobilizing Riders and Hiring Vast Lobbying Network,” Washington Post, December 13.
7. Walter Russell Mead (2010), “American Challenges: The Blue Model Breaks Down,” The American Interest, January 28 (www.the-american-interest.com).
8. Public Sector Retirement Systems (2014), “The Fiscal Health of State Pension Plans Funding Gap Continues to Grow,” Pew Charitable Trusts, April 8 (www.pewtrusts.org).
9. For an extended analysis of California’s pension mess, see Steve Malanga, “The Pension Fund That Ate California,” City Journal, Winter (www.city-journal.org).
10. Ibid.
11. Bureau of Labor Statistics (2013), Employer Costs for Employee Compensation—September. Washington, DC: Department of Labor.
12. Richwine and Biggs (2011).
13. From the official job description of accounting technicians in California. California Department of Human Resources (www.calhr.ca.gov).
14. Mead, “American Challenges.”
15. Congressional Budget Office (2014), The Budget and Economic Outlook, 2014–2024, February 4 (www.cbo.gov), table 1-2. I assumed that the CBO was using 2013 dollars. I could not find an explicit statement to that effect, but neither was any other year mentioned, and 2013 dollars were the most recent available when the study was published.
16. The federal budget is commonly expressed as a percentage of GDP. In those terms, federal outlays amounted to 20.8 percent of GDP in 2013 and are projected to be 22.4 percent in 2024. That’s relevant to the sustainability of the budget. But why should it be that larger GDP requires larger absolute expenditures? The cost of the military depends on the threats we face, not the size of its GDP. Income transfers (which comprise by far the greatest proportion of the budget) depend on the number of people who qualify for them, not the size of GDP. The education budget depends on the number of students, not the size of GDP. To treat absolute increases in the federal budget as normal just because GDP has gone up strikes me as nonsensical.
17. CBO (2014), The Budget and Economic Outlook, 2014–2024, February 4 (www.cbo.gov).
18. The apparent drop in the last half of the 1970s is illusory, created by the high inflation rate during that period—the federal budget grew, but the purchasing power of the budget fell.
19. Author’s analysis of the American Community Survey for 2011, accessed through Social Explorer, www.social.explorer.com.
20. CBO (2014), The Budget and Economic Outlook, 2014–2024, February 4 (www.cbo.gov).
21. The heads of certain corporations have been passionate and principled defenders not only of free enterprise but also of the most abstract principles of limited government, and they have operated their business in accordance with those principles. Some of these individuals were instrumental in the founding of the think tanks of the right recounted in the prologue.
22. Garrett (2014), chapter 1, fig. 1.1.
23. Ibid., appendix, fig. A.1 and following page.
24. “The Criminalization of American Business,” Economist, August 30, 2014.
25. Garrett (2014).
26. “The Criminalization of American Business.”
27. Garrett (2014), chapter 1.
28. Copland (2010) and Copland and Gorodetski (2014), both available at www.manhattan-institute.org, are excellent companion reading for Garrett (2014).
29. For a detailed account of the Arthur Andersen case, see Silverglate (2009), chapter 5.
30. See Lewis (2013) for a roundup of the industries that are most compromised by their reliance on government cooperation and favors.
31. Banks and Blakeman (2012), chapter 2.
32. Ibid., chapter 3.
33. Quoted in ibid., chapter 3.
34. Jung and Makowsky (2014), 14.
35. Center for Progressive Reform, “Environmental Enforcement” (www.progressivereform.org).
36. Office of Public Affairs (2013), “Justice Department Announces Update to Marijuana Enforcement Policy,” Department of Justice, August 13 (www.justice.gov).
37. Banks and Blakeman (2012), chapter 2.
38. Schuck (2014), 307.
39. Heclo (1977), 237.
40. Dull (2009), 436–37.
41. Schuck (2014), 315.
42. This is a median for the number of managerial levels (in parentheses) in the cabinet departments reported by Light (2008), 59, 61, as of 2004: Defense (30), Transportation (25), Agriculture, Interior, Treasury (24), Commerce (22), Homeland Security (21), Education (19), Veterans Affairs (18), HUD (15), State (10). Light does not provide figures for HHS or Energy.
43. Light (2008), 59.
44. Congressional Budget Office (2014), Comparing the Compensation of Federal and Private-Sector Employees. Washington, DC: Congressional Budget Office (www.cbo.gov); Andrew Biggs and Jason Richwine (2012), “The Truth About Federal Salary Numbers,” Washington Post, November 18.
45. Office of Personnel Management, Salary Table No. 2014-ES and Salary Table 2014-GS (www.opm.gov).
46. Schuck (2014), 321.
47. Richard A. Oppel (2014), “Every Senior V.A. Executive Was Rated ‘Fully Successful’ or Better over 4 Years,” New York Times, June 20.
48. Andrew Biggs and Jason Richwine (2012), “The Underworked Public Employee,” Wall Street Journal, December 4.
49. Light (2008), chapters 4 and 5 for discussion of surveys of federal employees and prospective federal employees. The text draws from Schuck (2014), 321.
Chapter 14. Once the Curtain Has Been Pulled Aside
1. A spreadsheet with the latest estimates of historical per-capita GDP may be downloaded from the Maddison Project (www.ggdc.net). The project is named after Angus Maddison, a pioneer in long-term historical economic statistics.
2. The two measures are only fractionally different. In 1929, the first year in which GDP was calculated, per capita GNP was $10,797 (2010 dollars) while per capita GDP was $10,954.
3. I presented a version of this graph ending in 2004 and a similar argument in Murray (2006), 126.
4. Matthew O’Brien (2012), “Why the Mortgage Interest Deduction Is Terrible,” The Atlantic, October 21 (www.theatlantic.com).
5. The following argument draws directly from Murray (2006), 38–40.
6. In retirement, liberal senator George McGovern, the Democratic presidential nominee in 1972, bought and operated an inn that went bankrupt in large part because of the costs of dealing with senseless regulations. He wrote in the Wall Street Journal that he wished that “during the years I was in public office, I had firsthand experience about the difficulties business people face every day. That knowledge would have made me a better U.S. Senator and a more understanding presidential contender.” See George McGovern (1992), “A Politician’s Dream Is a Businessman’s Nightmare,” Wall Street Journal, June 1.
7. For a detailed account of the process, see DiSalvo (2011).
8. Ibid., 11.
9. Ryan (2014).
10. This line of argument draws from Charles Murray (2014), “The Trouble Isn’t Liberals. It’s Progressives,” Wall Street Journal, July 1.
11. David Gelernter (2006), “Back to Federalism: The Proper Remedy for Polarization,” The Weekly Standard, April 10 (www.weeklystandard.com).
12. For my own account of American exceptionalism, see Murray (2013).
13. Tocqueville (1838), 380.