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Richard Epstein & Federalist Society Panel on Direct Democracy

Government of the People, by the People, and for the People?

The second Showcase Panel at the the Federalist Society’s 2010 National Lawyers Convention. November 19, 2010.

Prof. Epstein, as usual, has some thoughts on practicalities. (He’s wrong about the V-N War, though. What can I say, he’s a nice Jewish boy from Brooklyn. And among other things he did time at Berkeley.)

Very interesting discussion, and the gentlemen all are. :>)

From the description:

Direct democracy is feasible today to an extent that it was not feasible in 1787. Does that change the calculus in choosing between direct democracy and representation? What lessons, positive or negative, can be learned from the state experience with initiatives and referenda? Should Congress set up a system of national initiatives and referenda? Can Congress delegate its legislative power to the American people without violating the nondelegation doctrine? Should national initiatives and referenda be binding or merely advisory? Would it be acceptable for a national referendum to alter a law so as to effectively reverse a Supreme Court decision? Should the health care law be subject to such a referendum? Should increases in the national debt or in taxes be subject to voter approval?

In order of appearance:

Steven G. Calabresi — Moderator (Introduction, 6:32)

Panelists, speaking roughly 15 min. each:

William N. Eskridge, Jr. — Yale
Richard A. Epstein (at ~19:40) — NYU, U. of Chicago
Robert D. Cooter — Berkeley
Thomas W. Merrill — Columbia

Then the moderator puts a few questions, and finally there’s Q&A from the audience.


  1. The more I see of how American Federal government institutions work (not just under Obama – although it is worse under him), the more I am convinced that this is a SYSTEMATIC failure – which is not going to be solved by popular referendums and so on.

    How would things like the EPA be controlled by referendum? The question would be “do you want to protect the environment”, the people would vote “yes” and then all Hell breaks loose.

    The United States is now over 300 million people – too big?

    Little opportunity for people to “vote with their feet” – to go from States where government is out of control States where it is limited. The Feds are EVERYWHERE – and anyone who opposes the Feds (even by riding a horse carrying a flag) is a “domestic terrorist” according to Harry Reid (Majority Leader of the Senate).

    “But what about interstate infrastructure?” – like the Keystone Pipeline?

    Actually the Federal government is the biggest problem standing in the way of private companies building rational infrastructure. Instead there are insane statist schemes – pushed as “stimulus”.

    Will Rand Paul fix things in 2017?

    Even if he was elected – against the power of the education system and media, how could he fight the monster that the Federal government has become?

    “But the break up of the United States would leave the world open to the Islamists – and to Russia and China”.

    Well that would not bother Prof Epstein (with his anti Vietnam war opinions) – but yes it would bother me.

    However, the American military is already collapsing – and will continue to collapse.

    The age when the United States was the policeman of the world are coming to an end – there may be one last flurry in relation to Iran (if Comrade Barack is finally convinced that the Shia “hasteners” hate Marxists as much as they hate the West), but that will be the last gasp of a declining power.

    Time for places like North and South Dakota, and the other 48 States, to try something new.

    Perhaps a loose defensive alliance – drawn up at a Convention.

    The vision of the Federalists worked for a awhile – but now it has grown out of control (using flaws that were always in there from the start) and it is time to go back to the States.

    Short version……

    How “we the people” is interpreted is a mistake – a fundamental mistake.

    No one (no one) should be able to say “I represent the people of the United States” – if politicians must exist they should represent a specific State in defensive alliance.

    No State having Federal regulations (such as the FUGITIVE SLAVE LAWS) imposed on top of its own regulations.

  2. CountingCats says:

    My already stated position on this:

    Paul, don’t you mean systemic, not systematic?

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