POLITICO Arena asks a second question today:

In three states over the weekend — New Hampshire, Washington, and Arizona — Tea Party candidates beat establishment candidates for state GOP party chairmanships. Does this signal that the Tea Party may not be fading away anytime soon or, as Harry Reid predicted, that as soon as the economy improves, “the tea party will disappear.”

My response:

It is not too much to say that if the Tea Party fades away, the country will fade away with it, because the out-of-control deficits and debt and the underlying unconstitutionalism that gave rise to those cancers and to the Tea Party itself have proven intractable for business-as-usual Republicans and Democrats alike. Far from a transitory focus on the economy, the Tea Party’s concern is systemic: It goes to the very foundations of the nation. Heaven help us if it fades.

Town​Hall​.com has launched a petition to eliminate taxpayer subsidies to NPR. They call it the “Defund NPR” petition, but that title suggests that everyone, not just Congress, should stop funding NPR. That may appeal to many of the petition’s signers, but the petition’s text only calls for an end to government funding. “Liberate NPR” would be a better title.

Today POLITICO Arena asks:

Is there anything inappropriate about Justice Scalia’s speaking about the Constitution before Rep. Michele Bachmann’s Tea Party Caucus, as the New York Times editorial board suggests? Is it time to drop the fiction of a judicial monastery with justices detached from the political process?

My response:

There is nothing inappropriate about Justice Scalia’s speaking today before the congressional Tea Party Caucus — or any other group, for that matter, that is well within the mainstream of American politics. As POLITICO reports, Rep. Bachmann’s event is open to all members of Congress, and several Democrats have said they’ll attend.

The complaint by the editorial board of The New York Times — that “the Tea Party epitomizes the kind of organization no justice should speak to” –reflects nothing more than that corner’s refusal to accept the legitimacy of the Tea Party, notwithstanding last November’s elections. When the board goes on to condemn the Tea Party’s “well-known and extreme point of view about the Constitution,” it might better direct its wrath at James Madison. After all, as the principal author of the Constitution, he’s the Framer who promised in Federalist 45 that the powers of the new government would be “few and defined” — the “extreme” view the Times editorialists regularly condemn.

In deciding cases, judges and justices need to be detached from politics, of course: They belong to the “non-political branch.” But that hardly precludes them from talking about the Constitution in political contexts. If anything, it is the Congress that needs to be more attentive to the Constitution its members take an oath to uphold. That, in fact, is the root of our problem today. And we have the Tea Party to thank for noticing it.

It would appear that I am the Liar of the Year.

The fact-checking journalists at Poli​ti​Fact​.com gave their 2010 Lie of the Year award to the notion that ObamaCare is “a government takeover of health care,” and in 2009 gave the same award to Sarah Palin’s “death panels” claim. But as I explain in my latest column for Kaiser Health News, the fact-checkers left out a few facts. Read the column to find out what PolitiFact missed. Here’s my conclusion:

From my vantage point, the evidence shows that ObamaCare is a government takeover of health care, and Sarah Palin’s “death panels” claim was essentially true. If that makes me Liar of the Year, so be it.

But another way to look at it is this: PolitiFact has now misappropriated this award for two years in a row. Not only is each of these “lies” factually true, but — and this is more important — the people who made those statements believe them to be true, which means they fall short of the dictionary definition of a lie: “An assertion of something known or believed by the speaker to be untrue with intent to deceive.” There is simply no factual basis — and no excuse — for calling them lies.

PolitiFact’s Lie of the Year award has proven as conducive to civil discourse as Rep. Joe Wilson’s, R- S.C., dyspeptic “You lie!” outburst during one of President Obama’s previous addresses to Congress. Rather than continue to poison the well by dispensing another award this year, PolitiFact should just let it lie.

PolitiFact should also revisit its evaluations of those two claims.

A bit lost in last week’s legal news regarding a majority of states now suing over Obamacare, the House voting to repeal Obamacare, and the anniversary of Citizens United, was the first interesting Supreme Court decision of the term. Most notably, Justices Scalia and Thomas continued their valiant struggle to limit the scope of the constitutional misnomer that is “substantive due process” doctrine.

The case was NASA v. Nelson, a suit challenging the background checks for perspective NASA contractors as violating an evanescent constitutional right to informational privacy. The Court ruled unanimously against the challengers, with Justice Alito writing for the majority that, regardless whether such a right exists, it was not violated by the government’s probing questions on sexual history and mental health.

Justices Scalia and Thomas rightly found problems with this essentially useless ruling. Scalia, joined by Thomas, concurred in the result but wrote separately to say that if a right doesn’t exist then the Court should just say so. He would have simply held that there is no constitutional right to “informational privacy”:

I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law…. And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States…. To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.

In the course of his typically entertaining opinion we see Scalia back to his old self, caustically lambasting the “infinitely plastic concept of ‘substantive’ due process” and suggesting that it is “past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.”

Indeed, the seemingly oxymoronic concept of substantive due process has received much attention as of late, particularly in last term’s groundbreaking case of McDonald v. Chicago. McDonald, remember, examined whether the individual Second Amendment right articulated in District of Columbia v. Heller applied to the states. I previously blogged about McDonald here and here, for example.

McDonald came out the right way but for the wrong reasons. Rather than enforcing the right to keep and bear arms against the states via the Privileges or Immunities Clause, as nearly all constitutional scholars of every ideological stripe contend should be the case, the Court chose to invoke substantive due process. Even Scalia agreed with this perversion, because apparently 140 years of bad precedent overrides originalism or whatever other interpretive theory he claims to support. 

Justice Thomas, on the other hand, agreed with the principled approach favored by most scholars (and Cato’s own amicus brief) and wrote separately to advocate overruling the Slaughter-House Cases and reinvigorate the Privileges or Immunities Clause. Curiously, Justice Thomas couldn’t resist filing a separate one-paragraph concurrence in Nelson, seemingly for the sole purpose of citing—and reminding Justice Scalia of—his McDonald concurrence.

After all, Scalia is often regarded as the font of originalism. In reality, he has proven himself to be an originalist of convenience, accepting corrupt interpretations when the mood strikes him. During oral arguments in McDonald, for example, Scalia mocked attorney Alan Gura for daring to make an originalist argument that would overturn an old precedent. Why challenge the substantive due process doctrine, wondered Scalia, when “even I have acquiesced to it?”

Scalia’s faint-hearted originalism does a disservice to that jurisprudential method. With his acerbic wit, infectious personality, and unrivaled rhetorical skills, Scalia has become the poster-boy for originalism. In response, the academic elite—who overwhelmingly reject originalism—focus on every Scalia opinion, hoping to catch a glimpse of the true justice who uses originalism to hide decisions often based largely on policy preferences.

Indeed, given Scalia’s pointed and insightful prose, there is always an opportunity to hoist him by his own petard. In McDonald, for example, it was Scalia who, to use his own Nelson lines, “invoked the infinitely plastic concept of ‘substantive’ due process,” which of course “does not make this constitutional theory any less invented.” For more on this, see “Judicial Takings and Scalia’s Shifting Sands,” the law review article I recently published with my colleague Trevor Burrus—in which we criticize Scalia’s conflicting views on constitutional fidelity in two cases from last term, McDonald and Stop the Beach Renourishment.

Recall that originalism involves a jurist’s resisting personal biases by trying to maintain fidelity to the very document that gives him his job. This highly textualist approach is what makes Justice Thomas arguably the most predictable justice in the history of the Court. And in the law, predictability is a good thing. Underscoring this point is the concern about Justice Scalia’s vote in the Obamacare litigation—because of his concurring opinion in the medicinal marijuana case of Gonzales v. Raich—while Justice Thomas’s vote is assumed to be in hand. (Precisely because Scalia is somewhat outcome-oriented, however, I personally don’t share that concern.)

I just hope that going forward, Justice Scalia will have the same thing for breakfast that he did the morning NASA v. Nelson came down.

H/​t to my sometimes collaborator Josh Blackman; head over to his spectacular blog to read more extensive analysis. And thanks to Trevor Burrus for his help with this post.

There’s a supposed expose’ in the U.K.-based Daily Mail about how major British companies have subsidiaries in low-tax jurisdictions. It even includes this table with the ostensibly shocking numbers.

This is quite akin to the propaganda issued by American statists. Here’s a table from a report issued by a left-wing group that calls itself “Business and Investors Against Tax Haven Abuse.”

At the risk of being impolite, I’ll ask the appropriate rhetorical question: What do these tables mean?

Are the leftists upset that multinational companies exist? If so, there’s really no point in having a discussion.

Are they angry that these firms are legally trying to minimize tax? If so, they must not understand that management has a fiduciary obligation to maximize after-tax returns for shareholders.

Are they implying that these businesses are cheating on their tax returns? If so, they clearly do not understand the difference between tax avoidance and tax evasion.

Are they agitating for governments to impose worldwide taxation so that companies are double-taxed on any income earned (and already subject to tax) in other jurisdictions? If so, they should forthrightly admit this is their goal, notwithstanding the destructive, anti-competitive impact of such a policy.

Or, perhaps, could it be the case that leftists on both sides of the Atlantic don’t like tax competition? But rather than openly argue for tax harmonization and other policies that would lead to higher taxes and a loss of fiscal sovereignty, they think they will have more luck expanding the power of government by employing demagoguery against the big, bad, multinational companies and small, low-tax jurisdictions.

To give these statists credit, they are being smart. Tax competition almost certainly is the biggest impediment that now exists to restrain big government. Greedy politicians understand that high taxes may simply lead the geese with the golden eggs to fly across the border. Indeed, competition between governments is surely the main reason that tax rates have dropped so dramatically in the past 30 years. This video explains.

Alex Pareene of Salon makes some fair points in his posting, “Tea Partiers don’t actually care about ‘liberty.’ ” It’s disappointing to hear that New Mexico Tea Partiers booed Gary Johnson’s support for legalizing marijuana. And it’s true that a new poll shows Tea Partiers pretty strongly against marriage equality. But the poll does show them just a smidgen more supportive than either conservatives or Republicans. And other polls (click “Social Issues” on the left) have shown somewhat more support among self-identified Tea Party supporters, or a clear division between libertarian-minded and culturally conservative Tea Partiers. In general, Tea Party activists — organizers and people who attend events — seem somewhat more libertarian than people who simply tell pollsters they consider themselves to be members or supporters of the Tea Party movement.

Tea Party groups have declined invitations to criticize federal court rulings on gay marriage. They have studiously avoided taking positions on social issues, even when social conservatives stomp their feet and demand that the Tea Party start talking about abortion and gay marriage.

I have said before that “The tea party is not a libertarian movement, but (at this point at least) it is a libertarian force in American politics. It’s organizing Americans to come out in the streets, confront politicians, and vote on the issues of spending, deficits, debt, the size and scope of government, and the constitutional limits on government. That’s a good thing. And if many of the tea partiers do hold socially conservative views (not all of them do), then it’s a good thing for the American political system and for American freedom to keep them focused on shrinking the size and cost of the federal government.” That still seems a valid point: Whatever views individual Tea Partiers may hold on an array of issues, as the Tea Party they are organized to constrain taxes, spending, deficits, debt, and the size of government, and that’s a libertarian direction.

Pareene seems simply wrong when he triumphantly ends his post with this supposedly damning quotation from Cato:

(A post from the Cato Institute makes its cheerful willingness to abandon the non-economic planks of its platform explicit: “Candidates and representatives hoping to appeal to the Tea Party, we argue, need to focus on a unifying economic agenda that takes into account this strong libertarian undercurrent.”)

Just read the quotation. My colleague David Kirby is saying that Republicans should avoid divisive social issues — presumably meaning abortion, gay marriage, and projects like the Terri Schiavo intervention — lest they lose the support of libertarian-leaning Tea Party activists. That is, he’s urging the Republican Party to abandon its non-libertarian agenda in order to unify a broad coalition of conservatives, libertarians, and independents. Pareene seems to have misread it.