Article III, Section 1 of the U.S. Constitution provides that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour …” The result is that instead of choosing Justices on the basis of their experience, maturity and gravitas, there is a premium on packing the Court with youngsters who will reflect the incumbent administration’s values for as many decades as possible.

The current Supreme Court, consisting of Justices Kennedy, Thomas, Ginsburg, Breyer, Roberts, Alito, Sotomayor, and Kagan (in order of confirmation), were confirmed at ages 51, 43, 58, 45, 40, 55, 55, and 50, respectively. They have served for 28, 25, 23, 22, 11, 11, 7, and 6 years. The late Justice Antonin Scalia was confirmed at age 50 and served 29 years. President Trump’s new nominee, Neil Gorsuch, is 49. There have been no successful nominees in recent memory over 60, and only one over 55.

A 14-year term limit would make the optimal age for a new Supreme Court Justice about 60. Most retirements would arrive on a predictable schedule with Justices in their mid-70s, rather than on an undignified death watch as at present. So far we’ve been spared (to the best of my knowledge) the predicament of a Justice afflicted by Alzheimer’s disease, a debilitating stroke, or senile misbehaviour, but as life expectancy increases, this is merely a matter of time.
A study by David Garrow documents that no less than 17 Justices became incompetent by virtue of “mentally decrepitude,” yet continued to serve and sometimes even cast decisive votes. A few notable 20th century instances were Justices Taft, Holmes, Black, Douglas, Powell, Brennan, and Marshall. At present the only remedy for such a condition is impeachment by Congress, but unfortunately that would cast an undeserved moral shadow over the Justice in question. Term limits would greatly reduce the probability and consequences of such a misfortune. With such a limit, the continuity of Supreme Court decisions would be determined by the strength of their legal reasoning, rather than by the longevity of their proponents as at present. [Paragraph corrected 6/24/17. See comment below for reference.]

Last week President Trump issued an executive order that suspended new refugee admissions for the next 120 days. The order capped the total number of refugees allowed into the United States this year at 50,000, about half of what was allowed under Obama. Travelers from seven nations—Iraq, Iran, Syria, Yemen, Sudan, Libya, and Somalia—are banned for 90 days.

The order sparked a wave of protests and litigation. The ACLU sued in Brooklyn over the detention of two Iraqis at JFK airport. On Saturday, Judge Ann Donnelly issued an emergency stay, blocking the deportation of some 200 people. She cited “irreparable harm” as part of her decision. Photos of lawyers sitting on the floor at major airports circulated around social media as hundreds of attorneys filed emergency habeas corpus petitions on behalf of detained travelers. It’s known that UMass Dartmouth professors were detained under the order. They have subsequently been released. A Clemson PhD graduate was taken off her flight in Dubai and not allowed to reenter the States, where’s she’s lived for several years. She’d been visiting family in Iran.

There’s a lot to be said about this ban. As noted above, the legality of the order is already in question. Others have pointed out (I think rightly) the hypocrisy of the left. While they have rallied against Trump’s order (again, I think rightly), they failed to so much as raise a finger in protest when Obama effectively turned away Cuban refugees in the last days of his presidency. Still, others have called the order “a ban on Muslims.” While I think there may be some truth to that designation, given Trump’s political rhetoric, it’s difficult for me to call this a ban on Muslims, when a host of other predominately Muslim countries are not covered under the ban (e.g. Egypt, UAE, Saudi Arabia, Afghanistan, etc.).

Obamacare’s most popular provision is its prohibition against health insurers charging higher premiums for pre-existing conditions. It is so popular that Republican politicians have promised to keep it! (Or, at least bring it back once they repeal and replace Obamacare.)

Scholars at the Kaiser Family Foundation have estimated that 27 percent of American adults had pre-existing conditions that would have made them uninsurable in the individual market pre-Obamacare. Of course, nowhere near that many adults were in that situation.

Most of us get coverage in the employer-based market, in which we are protected from underwriting as long as we stay employed and move from one employer to another without a gap in coverage. (The law regulating this is called HIPAA.) However, protection this is not free: Although most Americans do not think of it this way, the trade-off is that you must allow a corporate bureaucrat in your employer’s HR department choose your health insurance.

A couple years ago I arrived in New Orleans for a small conference. Prior to the opening dinner and reception, I went to the hotel gym to exercise. There was a man on one of the other cardio machines, and a national news network was on the TV. I got on the treadmill and start running.

On the screen appeared Hillary Clinton, then seeking the Democratic nomination for president. The story centered on Clinton’s historic run. In particular, the reporters were asking women what they thought of Hillary Clinton and the idea of voting for a woman. The respondents stated that voting for a woman would be an amazing experience. They mentioned nothing of her politics, only her gender.

Suppose the Canadians were to build a wall to keep Americans out of their country, making it clear that Americans are simply not decent, productive, peaceful people and therefore the fewer of them who enter Canada the better. Might Americans take justifiable offense at such treatment?

Why does anyone imagine that Mexicans feel any differently?

I spent more than a decade of my career largely engaged in studying the history and economics of U.S. racial differences and race relations. (See, for example, my book Competition and Coercion.) In the USA and its colonial precursors, racial oppression took many forms, including after the War Between the States a widespread state-enforced system of racial segregation in which the “separate but equal” public facilities provided for the use of blacks were almost invariably inferior. But the system also took many seemingly pointless forms, not of any evident value to any group of white rent-seekers or to whites in general. The “point” of these restrictions, however, was always simply to insult and humiliate black people, so that even the most “no account cracker” could see that he was superior, and recognized as such, even to the most polished and accomplished black. This institutionalized humiliation of people was always the part that, aside from the ongoing, unpunished assaults and murders, rubbed me the rawest about the system.

There was much vitriol surrounding the inauguration of Donald Trump as the 45th President of the United States.  One thing that struck me was the frequency with which commentators threw around the words fascism and fascist.  For example, The Huffington Post warned that Trump’s Emerging Fascism Threatens the Nation; Salon chastised the country with the headline Congratulations, America– you did it! An actual fascist is now your official president; The Nation predicted that Anti-Fascists Will Fight Trump’s Fascism in the Streets.  There is even a website called refusefascism.org that urges Americans to “stay in the streets to stop the fascist Trump/Pence regime.”

With all the voices warning of the rise of fascism in America, it would serve us well to define fascism to ensure we understand each other and can discuss the matter with intelligence and civility.  Our friend Sheldon Richman is helpful on this point with his thorough entry in The Concise Encyclopedia of Economics.  Here is an excerpt:

As an economic system, fascism is socialism with a capitalist veneer. . . . Fascism substituted the particularity of nationalism and racialism –“blood and soil”–for the internationalism of both classical liberalism and Marxism. . . .Where socialism sought totalitarian control of a society’s economic processes through direct state operation of the means of production, fascism sought that control indirectly, through domination of nominally private owners. . . . Under fascism, the state, through official cartels, controlled all aspects of manufacturing, commerce, finance, and agriculture. Planning boards set product lines, production levels, prices, wages, working conditions, and the size of firms. Licensing was ubiquitous; no economic activity could be undertaken without government permission. Levels of consumption were dictated by the state, and “excess” incomes had to be surrendered as taxes or “loans.”

Trump is undoubtedly a nationalist and protectionist and proudly declared during his inauguration address that he would put “America First.”  Inasmuch as nationalism is a critical ingredient of fascism, it is indeed present.  But notably absent from the Trump agenda is cartelization of American business, planning boards, or control of economic activity or consumption.  Instead, Trump seeks to reduce government regulation, has imposed a hiring freeze on federal agencies, and advocates cutting taxes–the lifeblood of the state.

While there are many criticisms one can raise about Trump and certain of his policies, fascism is not one of the them.  Unfortunately, fascism has become a label attached to anything a speaker does not like.  Modern use of “fascism” is empty and imprecise.  If you want to criticize Trump feel free to do so—but please offer reasoned arguments rather than lazily labeling the man as something that he clearly is not.

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For lessons for reimagining American politics to foster liberty and truly representative governance, please see the Independent Institute’s widely acclaimed book: Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution, by William J. Watkins, Jr.

Silence, the powerful new film by iconic film director Martin Scorcese, is a complex story of faith and spiritual inspiration set during feudal Japan’s 17th century purge of Christians and their priests. It’s also a moving and thoughtful meditation on religious freedom, on personal versus state-sponsored faith, and on how character is defined by the choice of whether or not to submit to the State.

The film is based on the 1966 novel of the same name by Shusaku Endo. In short, two priests, Fr. Sebastiao Rodrigues (Andrew Garfield) and Fr. Francisco Garupe (Adam Driver), travel to Japan to find their mentor, Fr. Ferreira (Liam Neeson). Reports from Portuguese traders say that Ferreira gave up the Catholic faith and now lives among the Japanese, choosing to preserve his own life rather than fight against a Shogun who has killed hundreds of thousands of Japanese Christians. The young Jesuits can’t believe someone with as deep a commitment to his Christian faith as Ferreira could turn away from the Church and God. So they set out to find the truth. Rodrigues and Garupe find themselves at the epicenter of the Shogun’s religious persecution: Nagasaki (at the southern most western tip of the main islands of Japan).  

The film places the events in and around 1640, which would be just after the Shimbara Rebellion (1637-38) and several decades after the beginning of the repressive period. In 1597, ten years after the ban of Christian missionaries, 26 Jesuit priests were crucified in an effort to purge Japan of missionaries and enforce a prohibition on its teachings. The rebellion forty years later consisted mostly of Christian peasants, fishermen, and ronin (masterless samurai) who rose up against the Shogun to protest higher taxes, their anger fueled by a persistent famine and ongoing religious persecution. The rebellion was suppressed by a coalition of Japanese lords under the shogunate, and 37,000 rebels and sympathizers were beheaded. Christianity survived only by going underground. The persecution of Christianity became even more focused and repressive in the rebellion’s aftermath, as the Shogun (who was situated in Tokyo in eastern Japan) viewed western religion as a threat to national unity.

It’s in this period that Rodrigues and Garupe are led to a Japanese fishing village by Kichijiro (Yosuka Kubozuka), an alcoholic fisherman who has renounced his Christian faith. The villagers, however, are underground Christians (Hidden Christians) and excited to have the priests arrive so they can properly receive the sacraments. At the same time, the governor, the infamous persecutor Inoue Masashiga (Issey Ogata), relentlessly enforces the ban, requiring adherents to renounce their faith or suffer imprisonment, torture, and death. Rodrigues and Garupe administer the sacraments while at the same time searching for the whereabouts of their former teacher. They are eventually captured and imprisoned, and they are forced to watch believers systematically tortured and killed, some through crucifixion, others through drowning or beheading. None renounce their faith, impressing upon Rodrigues the purity and sincerity of their beliefs.

As they bare witness to the torture, Rodrigues and Garupe are forced to question their own commitment to God and their faith. If they publicly renounce God, they can potentially save the lives of the remaining believers. The Masashiga and his lieutenant (Tadanobu Sano, 47 Ronin, Thor) insist that the only reason the villagers and peasants are dying is because of a stubborn and self-centered commitment to publicly proclaiming their fealty to God and Jesus Christ. Garupe is eventually martyred while trying to save believers who are being drowned, throwing Rodrigues into an emotional and philosophical tailspin and forcing him to seriously consider abandoning the Church and teaching Christianity. 

But have the priests truly renounced their faith? This is the film’s central question. A tenet of Christianity, artfully woven into the plot through the character of the lapsed Christian Kuchijiro, is that true commitment and fidelity are known only to God and in the individual’s heart. This principle is problematic under state and cultural oppression, because Christianity is also inherently a system of social practice and ethics—Christians are mandated to act toward others in a manner consistent with God’s will, as practiced on earth by Christ Jesus. Rodrigues must reconcile the mandate to act with love and forgiveness with the fact he endangers the lives of practicing Christians every time he publicly refuses to renounce his faith before Masashiga.

But the story is more than a journey of personal faith. Silence also explores how the government uses faith to secure and consolidate power. Masashiga points out that he is not really asking Rodrigues to renounce his faith, only to stop practicing it and converting Japanese. He emphasizes the inner-directedness of Buddhism as a superior alternative to Christianity, and one consistent with the goals of the Shogun. (The film makes no mention of the indigenous Shinto religion and its practices, even though the rituals can be traced to the 8th century.) The State’s interest is national unity and subservience to the Shogun, not individual salvation or personal growth. Christianity undermines these goals because Christianity teaches that individuals have free will and are not creatures of the State, let alone the Shogun. Christians are taught that they are created by God, in the image of God, and loved unconditionally by God. Thus, God, not the State, has moral authority. Silence makes good use of this principle by telling a second, equally important story that involves whether the State or the individual will prevail when they are in direct conflict. Conventional wisdom would suggest that the State wins when priests and believers publicly renounce their faith in a Christian God. Scorcese doesn’t let the story end there, making the ending provocative and thought provoking.

Silence has been mentioned as an Oscar contender for good reason. The story is complex but well told. Despite the 25 years Scorcese invested in bringing this film to theaters, the casting is spot-on, with excellent performances by Garfield, Driver, Ogata, Kubozuka, Asano, and others. Neeson does well, but his character seemed a bit flat, considering his role in turning Rodrigues and the drama that must have accompanied his character’s meeting with his former pupil. Despite being filmed in Taiwan, the rural, mountainous setting conveys the isolation and topographically challenging environment of western Japan. The film is long, over two and half hours, and the pace methodical, but moviegoers looking for deep content rather than flash should come away more than satisfied.

Today, social justice warriors took to the streets of Atlanta to protest the election of Donald Trump. (The Atlanta Journal Constitution has this report on the activities of the marchers.) Former President Jimmy Carter, U.S. Representative John Lewis, and former Atlanta Mayor Shirley Franklin were the Democratic headliners of the event. Sponsors of the rally include the ACLU, Planned Parenthood, Democratic Socialists of America, the NAACP, and the Sierra Club. (A full list of the sponsors can be found here.)

Joining these Democratic heavy weights were members of the Industrial Workers of the World. According to this article in The Guardian, they marched “with a red and gold hammer and sickle flag, [and] chanted ‘no more presidents.'” The IWW, of course, is a Marxist organization that believes (according to the preamble of its constitution) that “the workers of the world [must] organize as a class, take possession of the means of production, abolish the wage system, and live in harmony with the Earth.”

Has anyone seen any headlines in the mainstream media reporting that “Democrats and Communists Rally in Atlanta”?  Of course not.  One could argue that the IWW is an insignificant organization that hasn’t had much influence since the death of its founder Eugene Debs, who ran for president five times in the early 1900s. Thus, coverage is not warranted.

Well, maybe. But insignificance sure didn’t stop the mainstream media from reporting over and over when Richard Spencer and a couple of hundred knuckleheads gathered after the November election and discussed white nationalism in Washington, D.C., and shouted “Heil Trump.”  The Spencer meeting was big news covered by all the major networks despite the fact that his following is minuscule.

The favorable press received by the Atlanta marchers despite the Wobblies in their ranks is just another example of the mainstream media’s bias.  It is no wonder that Americans’ trust of the mainstream media has dropped to a historic low.  If the media is going to blow out of proportion the activities of groups who are an embarrassment to folks on the Right, they should do the same with the embarrassments on the Left.

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William J. Watkins, Jr. is a research fellow at the Independent Institute and the author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.

On Wednesday, I watched the Senate’s Health, Education, Labor, & Pensions (HELP) Committee’s courtesy hearing for Representative Tom Price, MD, whom President-elect Trump has nominated to be the next United States Secretary of Health & Human Services. As a game of “gotcha,” the hearing played out predictably.

However, Senator Bernie Sanders (I-VT) stood out for asking a pointless “question” (actually a statement), which was conspicuous because it was based on an error. As he has done many times, Senator Sanders made the false claim that health care is a right in Canada and other countries outside the United States. According to Mr. Sanders, this is a unique stain on the United States.

With respect to Canada, it is simply and plainly not true that health care is a “right.” By “not true” I do not refer to the fact that an American standard of health care is not available to ordinary Canadians (due to long waiting times), but that those who enforce Canada’s single-payer system have insisted in court no such right exists.

The claim was made in the Supreme Court of British Columbia in February 2009, in the case known as Cambie Surgical Center et al. v. Medical Services Commission et al. Cambie Surgical Center offered orthopedic surgery outside the single-payer system for private payment. The Medical Services Commission is the agency which operates the provincial single-payer system.

Contrary to Senator Sanders’ claim, it was the private clinic which asserted a legal claim that its patients had a right to pay for surgery. It was the government agency which denied it. Don’t believe me. Read it on page 5 of the agency’s statement to the court: “there is no freestanding constitutional right to health care.”