As this post goes up I’m off to Germany, this time for some actual work. In cooperation with the Council on Public Policy (a German think tank run by my buddy Michael Zoeller), the GMU Law & Economics Center runs something called the Transatlantic Law Forum (TLF). We assemble legal scholars, judges, and lawyers from both sides of the pond and the blessed isle in-between to discuss serious, salient questions related to constitutionalism and the rule of law. Our conferences alternate between GMU’s Antonin Scalia Law School and Bucerius Law School in Hamburg (Germany’s only private law school, and therefore far and away the best). Last year’s event at ASLS, on “The Administrative State and its Law,” produced terrific essays that will appear in a forthcoming issue of the George Mason Law Review; I’ll blog them. This year’s confab (our ninth) at Bucerius is dedicated to “Liberalism, Populism, and The Politicization of Everything: Politics, Markets, and the Law.” From the Agenda:
Liberal democracy has sought to enable ordinary democratic politics—and to discipline it by putting certain domains beyond its reach. Among those domains, in the traditional understanding, are constitutions and the rule of law; markets and private orderings; civil society institutions; more controversially perhaps, independent institutions such central banks or universities. In institutional practice, those somewhat artificial lines have always been blurry, and one can reasonably ask whether they can hold under conditions of a modern democracy. Still, the general sense has been that that there must remain some meaningful distinction between public and private, between “the state” and society. Not everything can and should be politics.
Is this still true? Constitutional and rule-of-law constraints are treated rather cavalierly these days. The most ordinary private transactions, as well as civil society institutions from global investment banks to local food banks, have become subject to pervasive regulation. Paradoxically, though, enormously important decisions over public affairs have been entrusted to bureaucratic institutions and courts that are effectively and deliberately placed beyond democratic controls. Politics, it seems, is not quite everywhere. It is just in all the wrong places, and goes missing where it belongs. And both the rise and the demise of politics cut against liberty and the rule of law—no?
Hold the thought: the desired first-cut response is, how great thou are. Michael Zoeller planned this conference (as we had to) before the rise of Trump and assorted Putin clones in Europe; Brexit; the EU migrant crisis; transatlantic contretemps over whether the EU or the U.S. gets to confiscate Microsoft’s earnings in Ireland; and negative interest rates and helicopter money. Yet here we are. I suppose if you’re sufficiently old and jaded, you can see these things coming—and you’ll know or at least suspect that they all hang together in some common, more fundamental derangement.
You’ll also be sufficiently wise to know that you can’t think your way through this on your own. Instead, you’ll assemble smart, serious, thoughtful people, from a wide range of countries and perspectives, to engage in a loosely organized, no-holds-barred conversation among friends. That’s what this is. Go check out the program.
Can’t wait. Will report back.