A Quick Note on Donald Trump

A quick note to everyone panicking over the prospect of Donald Trump as the Republican nominee. Chill!  You seem to forget that Trump was Republican front runner at this stage in the last election as well.  And yes, I understand why everyone has managed to drop that down memory hole, but it remains the case.  Trump surged ahead by being the only Republican contender to seriously entertain the birthers.  The Tea Party embraced him.  However, he was not a member and did not speak their language, and it soon became apparent that he was merely pandering to them.  So the Republicans moved on to semi-serious candidates like Michelle Bachman, Herman Caine, Newt Gingrich, and Rick Santorum.  They were an appalling bunch, but at least they had one thing going for them -- none of them were Donald Trump.

This time instead of birtherism, the issue is illegal immigration, which has the advantage of being at least a real issue.  Still, there is every reason to believe that sooner or later Trump will commit some faux pas that makes clear to Tea Partiers that is is not one of them and is just pandering (again).  The Iowa caucus is still over five months away, for Pete's sake!  That will give plenty of time for the novelty to wear off and Trump to self-destruct over something.

I try to make it my rule not to comment on the election until the actual primaries begin.  This counts as a failure but occasionally a bit of madness has to be tamped down.  Panic over Trump is one such occasion.

American Labels Don't Fit in Europe

To continue, American political labels just don't work in Europe.  They didn't hold well in the 1930's, and they don't apply well now.  In the US, the macroeconomic left can roughly be identified with people who favor counteracting economic downturns with stimulus, whether fiscal, monetary or by currency depreciation.  The macroeconomic right either believe that stimulus is futile and what is needed are structural reforms, or that the downturn is a necessary correction and any attempt to counter it simply prolongs the pain.  The macroeconomic left tends to correlate with the microeconomic left (i.e., people who favor health and safety regulations to protect labor, consumers, and the environment), although there are a few exceptions like market monetarists.  These things tend to correlate, although they do not have to.  Indeed, one of the basic concepts my freshman year macroeconomics textbook had was that how activist one believed government should be in demand management and how large one believed the public sector should be were separate issues.  But no one in the US makes the distinction.

Europe is another matter.  This article suggests that in the German economic and ideological framework of "ordoliberalism":

[F]or ordoliberals the state is not an impediment to the efficient functioning of markets; for them strong government regulation is a necessary prerequisite for competitive market activity. And unlike in the Austrian or Chicago variants of neoliberal thinking, a strong state is seen as necessary to produce the moral, legal, and social frameworks (the Ordnung) essential for the functioning of markets. 

These state-initiated rules were intended to approximate as closely as possible the functioning of a perfectly competitive market. Consequently, ordoliberals place an outsized emphasis on preventing the establishment of cartels and monopolies. By preventing the formation of powerful economic agents which can influence the prices of goods and services, the state can create a situation approximating a state of perfect competition, which will drive economic development without government stimulus or non-regulatory intervention. By controlling the size and power of economic agents, and by encouraging the formation of a strong state, ordoliberals hoped to prevent a situation of regulatory capture, thus protecting the market from subversion by powerful economic actors. 

Perhaps unsurprisingly for a philosophical tradition from Germany, a famously rule-obsessed country, the need for a robust system of rules runs throughout the ordoliberal project. For them, economic rules are seen as constitutional, as an inviolable part of the fabric of society. For people in the ordoliberal tradition, as the legal scholar David Gerber put it, any action “which does not conform to constitutional economic principles should be overturned by the courts…just as if it had violated the political constitution.” In effect, ordoliberalism “constitutionalizes” the economy and embeds it in a broader normative framework.

Social democratic parties have been paralyzed by fidelity to the euro, acceding to ever harsher austerity that slowly grinds their economies down.  In the words of Matt Yglesias, "[S]ocial democrats feel paralyzed by the bounds of the eurozone. They don't have a strategy for changing the rules and they don't have the guts to tear up the rulebook."  It has been right wing parties, irate over the invasion of their country's sovereignty, that have been the serious challengers to austerity and the modern equivalent of the gold standard.  And I confess, much though I disapprove of the scapegoating of immigrants, it is hard not to applaud far right parties for their clear-headedness on economic matters.

Which leads to the subject of Ambrose Evans-Pritchard, right wing British journalist, euroskeptic, business editor for the conservative Daily Telegraph, Clinton conspiracy theorist -- and Keynesian. He writes column  after irate column on the subject in language that makes Paul Krugman sound temperate.  And in particular he calls on the left wing to rediscover its identity and make common cause:

We Conservatives have watched in disbelief as one Socialist party after another immolates itself on the altar of monetary union, defending a project that favours the elites - a "bankers' ramp", as the old Left used to call it. 

We have watched our friends on the Left apologise for 1930s policies. We have seen them defend a regime of pro-cyclical fiscal cuts imposed on the whole eurozone by a handful of "Ordoliberal" reactionaries in the German finance minstry. . . . It has somehow found ways to justify a youth jobless rate still running at 42pc in Italy, 49pc in Spain and 50pc in Greece, despite mass emigration.

. . . . . . 

This is what they agreed to, and what they have reluctantly defended, because until now they dared not question the sanctity of EMU. And so the once mighty Dutch Labour Party has been reduced to a pitiful relic. Pasok has been obliterated in Greece. 

The Spanish Socialist Workers' Party has lost its left-wing to the rebel Podemos movement, freshly victorious in Barcelona. France's Socialist leader, Francois Hollande, has been languishing at 24pc in the polls as the French working class defects to the Front National.

And this is not so far from what happened to the center-left in Europe as well in the 1930's, even as the US was electing Roosevelt.  And, as I said before, I begin to see why some US liberals in the 1930's might have applauded Mussolini or even Hitler for having the gumption to "tear up the rulebook" and save their countries' economies.  

Liberal Fascism Reconsidered

Anyone who followed me back when I was Enlightened Layperson knows that for a time I became obsessed with Jonah Goldberg's Liberal Fascism, without (I admit) actually going so far as to read it.  I generally agreed, however, with whoever it was who said that the book had already been written in 1944 under the title of The Road to Serfdom, and that Liberal Fascism was just a dumbed-down version.  In effect, any departure from libertarian minarchism that stops short of Communism is fascism.  And certainly any challenge to the will of the omnipotent and omniscient Free Market placed us on the Road to Serfdom.  And nowhere did I wax so indignant as on the subject of German Social Democrats who, after all, were champions of the eight-hour day, unemployment insurance, union representatives on corporate boards, and many other departures from strict libertarian economics, yet were the staunchest supporters of liberty and the Weimar Republic.  I said:

[I]f Goldberg's definition of fascism is broad enough to encompass the modern-day Democrats, there can be little doubt that the SDP would also be (inadvertently) caught in his net. . . . [D]oubtless it can be established that Social Democrats and fascists (as well as New Dealers) would agree on some (but not all) economic policies. But Nazis and Social Democrats were truly antipodes on the issue that mattered most of all -- respect for democratic norms and individual rights. 

If Goldberg wants to dismiss that aspect of fascism (and Nazism) as insignificant in order to score a few cheap points in the context of US politics, well, American liberals and Democrats can afford a thick hide. We are not being menaced by jackbooted Storm Troopers, after all. But to every brave German Social Democrat who stood up for democracy when the conservatives went along with Hitler, to every Social Democratic martyr who paid the price with loss of home and job, harassment, persecution, exile, prison, torture or murder for defending the democracy no one else was willing, Goldberg owes an apology.

I wrote that on January 31, 2008, aware at the time that our economy had some problems, but thinking of them as little more than distant events on the horizon, and certainly seeing the Great Depression has highly salient to understanding fascism, but of mostly historical interest.  I certainly did not foresee that a remarkably similar series of events would be playing out within the next few years!  But events then and now have forced me to learn more about international economics in general and the Great Depression in Europe in particular.  And what I have learned has compelled me to the conclusion that Goldberg, if he chose, could build up an ideological divide that would place Hitler, some of Hitlers conservative coalition partners, Mussolini, Japanese militarists, and Franklin Delano Roosevelt on one side (along with some Scandinavian Social Democrats as acceptable collateral damage); and German Social Democrats, the Catholic Center Party (ancestor to modern Christian Democrats), libertarians, and British politicians, Conservative and Labour, on the other.

The divide, of course, is Keynesian economics.  The German Social Democrats favored  social welfare programs, labor protective legislation, union representation on corporate boards, and other un-libertarian economic policies, but they were not Keynesians.  They never questioned the need to balance the budget but only suggested that cuts come from the military instead of unemployment insurance.  The German Social Democrats were prisoners of a semi-Marxist ideology, one that attempted to make Marxism a humanitarian ideology by keeping its indignation over the (genuine) abuses and flaws of capitalism, while rejecting the parts about violent revolution and hoping to achieve the grand utopia by reform instead.  In good times, this effectively meant building capitalism with a human face, but it left them completely paralyzed and unable to act in the face of the Great Depression.  Communists rejoiced in what seemed the final death throes of capitalism and prelude to the glorious socialist revolution.  Libertarians treated the downturn as a necessary shakeout to be endured.  And less ideologically rigid people, from Keynes on the left to elements of the German military on the right began calling for public works to revive the economy.  But German Social Democrats rejected such proposals.  As humanitarians they were horrified at the suffering they saw around them and by the prospect of revolution, but they were still too Marxist to be willing to save the capitalist system when it seemed to be destroying itself.  The British Labour Party, though less ideological, also embraced austerity.

In short, if you regard Keynesianism as fascism's original sin -- not its worst sin, but its initial sin from which all others flowed -- then I suppose one could absolve the German Social Democrats of any ties to fascism while roping in FDR even if he did not go as far as Mussolini, let along Hitler. Not having read Liberal Fascism, I do not know to what extent Goldberg blames everything on Keynes. Probably not that much, to judge from reviews, that seem to place more emphasis on turn-of-the-century Progressives that Keynesianism as such.

If Goldberg had written that book now, he would no doubt put more emphasis on the evils of Keynes. Because it is happening all over again.  Once again, countries have fallen into economic crisis are are prevented from recovering by a currency beyond their control -- gold in the 1930's; now euros.  Once again, creditor nations insist on full payment without regard to debtors' ability to pay.  Once again, all respectable parties are calling for austerity and ever more austerity.  And once again, when all respectable parties call for self-destructive economic policies, people increasingly turn to disrespectable parties.  Or, as Matt Yglesias says:

From Spain to France to Italy to Finland, social democrats feel paralyzed by the bounds of the eurozone. They don't have a strategy for changing the rules and they don't have the guts to tear up the rulebook. You have to turn to a LePen or a Beppe Grillo to see someone willing to say that if leaving the eurozone is the only way to reemploy the population, then it's time to leave the eurozone.

 And rightly so!  I begin to see how liberals of the 1930's might have started to admire Mussolini, and even to applaud Hitler for his ability to revive the German economy.  Just as I am beginning to have a guilty admiration for Marine LePen.  Unfortunately, sensible economic policies are being accompanied by a hefty dose of ethnic scapegoating.  And if you are going to argue that Keynesian economics is the original sin of fascism, I suppose it would follow that ethnic scapegoating simply flows from it.  Indeed, the National Review is accusing Bernie Sanders of being a "National Socialist" (though not, of course, a Nazi) because of he protectionism in trade and the acknowledgement of some of his followers that a strong welfare state is easier to achieve under conditions of ethnic homogeneity.  At the same, time, the article acknowledges:

F.A. Hayek’s Road to Serfdom notwithstanding, corralling off foreign-made cars does not lead inevitably to corralling off foreign-born people, or members of ethnic minorities, although the Asians-and-Latinos-with-their-filthy-cheap-goods rhetoric in and around the Bernieverse is troubling. There are many kinds of Us-and-Them politics, and Bernie Sanders, to be sure, is not a national socialist in the mode of Alfred Rosenberg or Julius Streicher.

Ultimately, the author acknowledges that Sanders' sin is in punching up, not kicking down.  But he does appear to see Sanders as a liberal fascist and at least try to tar him with ethnic scapegoating. The problem, of course, is that while in Europe the party that favors Keynesian economics and the one that engages in ethnic scapegoating are the same, it then U.S., they are not.  And if you are going to denounce fascism both for its Keynesianism and its ethnic scapegoating, there is no getting around the fact that in Europe those things go together, but in the US they do not.  Which places US libertarians of the Goldberg type in the awkward spot of having to decide which sin is worse.

Again on the Iran Deal

Sorry to keep circling back to the Iran deal, but it just seems kind of mind-boggling that a lot of people keep arguing that we would be better if Iran continued expanding its nuclear program than if it reduced it.  Let's not forget that they made the same objection when Iran agreed to freeze its nuclear program in exchange for limited and temporary sanctions relief and the beginning of talks.  Then, too, Iran hawks denounced the deal as appeasement and a grave danger.  Does anyone think we are better off with Iran continuing to expand its nuclear program than freezing it?  Does anyone think we are better off with Iran's nuclear program at current levels instead of reduced?  How is that supposed to work?

Of course, we know their real reason.  They don't care about the specifics of the program at all.  What matters is that the deal is with Iran.  Their policy toward Iran is regime change.  To sign any deal whatever with the Iranian government is to tacitly acknowledge its legitimacy and abandon our policy of regime change.  Thus critics of the deal say they are not in favor of war and they may very well be telling the truth.  They are in favor of regime change.  Whether the Iranian government has an active nuclear program is a whole lot less important than maintaining this commitment.

It is rather like argument at the end of the First Gulf War that Saddam Hussein had to go because he was just as much a danger as before.  In other words, he was just as dangerous whether he had an army or not.  It seemed uncommonly foolish to me, but at least that time around we first destroyed Saddam's army and then proclaimed him equally dangerous without it.  In other words, we were merely pretending there was danger when it was long gone.  This time Iran hawks are effectively saying that the Iranian government is equally dangerous regardless of what sort of nuclear program it has and are therefore blocking and steps to restrict its nuclear program.  That seems even more foolish to me.

At the same time critics want to refute accusations that they are opposed to any deal whatever.  They will agree to a deal that amounts to de facto regime change.  Well, here's a hint.  Dealing with a hostile regime by turning our backs and hoping that it will go away is not a very effective policy.  It wasn't effective against the Soviet Union before WWII.  It wasn't effective against Communist China. It wasn't effective against the Communist government in Vietnam.  It still isn't effective against Cuba under the Castros.  And it didn't stop North Korea from getting nuclear weapons.  There is no reason whatever to believe that it will be any more effective against the Ayatollahs.

What if Nixon Went to China But All He Got Us Was This Lousy T-Shirt?

I have several blog posts swirling around in my head, but they will take me some time to sort out and put in order.  In the meantime, this column annoyed me enough that I felt the need to write a refutation.

The basic premise of the column is that Alexis Tsipras will be the Greek equivalent of Luis Ignacio Lula da Silva of Brazil or Kim Dae-jung of Korea -- a politician of the Left who nonetheless adopts fiscally responsible, free market policies and thereby cements them into irrevocable policy on the theory that “If he now says that these measures are unavoidable, there truly must be no alternative.” Or, as the author himself comments, the left-wing equivalent of Nixon going to China.

The reason I am unconvinced is that the author is leaving out an important detail. For someone to adopt a policy that goes against ideological type and thereby cement it forever, it is not enough for the policy to go against ideological type.  It must also be successful.  If a political leader adopts a policy that goes against ideological type only to see it fail badly, people tend to be unimpressed by his going against ideological type and continue to want a policy that is successful.  People are funny that way.

Consider Nixon going to China, for instance.  Up till then, the formal policy of the US toward China had been one of regime change.  Specifically, we were formally committed to overthrowing the Communist government and restoring the Kuomintang government of Chiang Kai-shek in exile on Taiwan.  Of course, neither we nor the Chiang Kai-shek government had any capacity or plan for bringing such a result about, so our actual policy was to refuse all dealings with China's Communist government and hope it would go away.  It failed to cooperate.  Although the policy was an utter failure by any standards, no one dared depart from it for fear of being attacked by right wing hawks like Nixon.  Thus Nixon could get away with going against ideological type by going to China because he was immune from such attack.  But if it took Nixon to go to China, it took success to make Nixon going to China be a model to be emulated.  When Nixon went to China, it was the beginning of a long, slow process whereby the US and China normalized relations and China came out of its isolation to join the community of nations.  If instead Nixon had gone to China and received insulting and deliberately humiliating treatment there and a year or two later China had invaded Taiwan and/or South Korea, no one would cite Nixon going to China as a model to follow.

Or consider Nixon's predecessor, Lyndon B. Johnson.  I am firmly of the opinion that, just as it took a Nixon to go to China, it took a Southerner to enforce the Second Reconstruction.  But Johnson could be said to have gone against ideological type in another way as well.  His immediate predecessors, the liberal New England Democrat John F. Kennedy and the liberal Republican Dwight David Eisenhower had both resisted the temptation to go to war in Vietnam, considering it unwise to fight a land war in Asia.  In 1964, Barry Goldwater criticized Johnson for his timidity resisting going to war in Vietnam.  The American people voted for Johnson by a landslide, considering Goldwater a crazed warmonger.  Johnson nonetheless ended up sending 500,000 troops to Vietnam.  Arguably, he was going against ideological type.  But oddly enough, no one ever says, "It takes a Johnson to fight a land war in Asia," or "If even he sent 500,000 troops to Vietnam, there must truly have been no alternative."  The fact that the war did not go very well probably has something to do with that.

So, too, with Kim Jae-jung and Luis Lula da Silva.  I know more about Lula than about Kim.  My understanding in that case is that Lula looked at leaders of the Latin American Left who tried to overturn the social and economic order through the electoral process, only to see the order fight back and win.  After giving it careful thought, he decided that this was not a wise course of action and left the general structure intact, while pursuing moderate redistribution programs intended to put more money in the hands of poor people and allow poor children to stay in school.  Lula's policies became firmly cemented, not just because they went against ideological type, but because they worked.  If Lula had pursued generally conservative policies only to see Brazil grow torpidly, most benefits go to a narrow oligarchy, and then the economy crash into another crisis, it seems mostly likely that most people would not have said, "If even he says these measures are unavoidable, there must truly be no alternative."  More likely, people would have gone on looking.

Well, that is exactly what is going on in Greece today.  The EU has demanded that Greece continue pursuing policies that have been disastrous so far and give all promise of being disastrous into the indefinite future.  Center-left political parties have been duly falling in line with such policies since the financial crisis began, and they have been consistently unsuccessful.  Despite the fact that center-left parties have endorsed these conservative policies, the pubic remains unconvinced that there is truly no alternative.  The main result has not been making the public love austerity, but the destruction of center-left parties (the subject of one of those blog posts swirling around in my head). The author may think that a far-left party will make all the difference, but color me unconvinced.

In fact, the author sort of half-heartedly admits that one reasons people keep looking for an alternative to ever more austerity and "structural reforms" that look very much like very greater numbers of layoffs is that these policies have not worked very well.  

Foreign creditor governments can be unreasonable as well. The misperceptions and errors by leaders in Germany and other creditor countries have been as damaging as those on the part of the less-experienced Greek leaders. For example, the belief that fiscal austerity raises income, rather than lowering it, even in the short run, was a mistake, as was the refusal in 2010 to write down the debt. These mistakes explain why Greece’s debt/GDP ratio is even higher today than it was then.

Each side’s refusal to admit its mistakes reinforced the other side’s stubbornness. The Germans would have done better to admit that fiscal austerity is contractionary in the short run. The Greeks would have done better to admit that democracy does not mean that one country’s people can vote to give themselves other countries’ money.

Is it my imagination, or does is the acknowledgment that the measures creditors were insisting on actually harmed the Greek economy sort of undermine the argument that Greece should never have resisted them?  I suppose the author might argue that he wasn't talking about austerity, he was talking about "growth enhancing structural reforms" without ever explaining what these "structural reforms" are.  Is it too much to insist that anyone proclaiming that "structural reforms" are the secret to economic recovery should first at least explain what those "structural reforms" consist of?

I have seen only one explanation of why an agreement that is basically just more of the same policies that have been so disastrous up till now will be successful, and comparisons to Lula are instructive. Lula da Silva ran for President of Brazil promising to put the interests of the domestic population, especially poor people, ahead of foreign investors and creditors.  This so alarmed foreign investors and creditors that Conventional Wisdom urged Lula to begin his term by undertaking some harsh measure to hurt or punish poor people, not because it made any sense at all, but on a "Nixon goes to China" theory that only such a measure would reassure creditors that he didn't really mean it.  Well, Lula did not take their advice, and somehow creditors managed to calm down anyhow.  The article I have seen explains that for domestic consumption, Greece's creditors have to take some harsh measure to hurt Greece whether it makes economic sense or not, just to punish it for defying creditors.  But they don't really mean it and once the domestic public is not looking, they will secretly take it back and not insist on squeezing the Greeks, but merely on more of those "growth enhancing structural reforms," slightly more specifically identified as "promises on privatization, labor markets, and pension reform."  The author argues that, having adequately punished and humiliated Greece, Europe can't afford to see its latest effort fail and will have to loosen up.  In other words, Syriza committed the unforgivable sin of pointing out that Europe's policies were not working, Europe has forced Greece to say that they work and will now change its policies to something that actually does work in order to claim vindication.  I guess we will see.

Uh oh!  It looks as though Republicans are not the only ones whose base will be causing them problems in the upcoming election.

Constitution Sola Scriptura

OK, with that out of the way, I should probably say something about my general philosophy of interpreting the Constitution.  My philosophy is the one usually described as "textualism," i.e., that any decision should be justifiable by the text itself.  I have on other occasions referred to this as the enlightened layperson approach to the constitution -- that interpretations should make sense to a person with no special training in law or history who has nonetheless read the Constitution itself. It has also been called Protestant constitutionalism.  While Catholicism had a long history of scholarship and tradition in interpreting the Bible, Protestants proposed to set that aside and let every layperson read the Bible and interpret it in accordance with his or her personal conscience.  This is also called sola scriptura (only scripture) or the priesthood of the believer.

I have long been a fan of sola scriptura, although the rise of Wahabi/Salafi Islam has given me second thoughts.  I think it is fair to call the Wahabis/Salafis the Muslim equivalent of radical Protestants.  Like the more extreme Protestants (especially in the 16th Century), they are iconoclasts and destroy sacred objects lest they become objects of idolatry.  They also reject a longstanding body of scholarship and tradition in favor of sola scriptura and appear to believe in the priesthood of the believer. (At least Bin Laden, an engineer with no special religious training, was issuing fatwas in flagrant violation of tradition).  So I am now of two minds about sola scriptura.  On the one hand, it is supreme arrogance to set aside the contributions generations of scholarship who made study of the scriptures (and other forms of religion) their life's work and say that you know better.  On the other hand, quite simply, scholars can be wise and learned and still be wrong.  And if one scholar builds upon the work of another, retaining the earlier scholar's errors and elaborating or magnifying them, you can end up with a huge edifice of scholarship that ends up having no scriptural basis whatever. That is worth challenging.

I am rather less conflicted about the subject when it comes to the Constitution.  The Constitution was not written in the distant past by remote and little-known figures.  It was written in 1787 by well-documented figures with an outlook not so different from our own.  The Founders had, for the most part, moved away from Christian orthodoxy.  They were, nonetheless, intellectual and philosophical heirs of the Protestant tradition of making the Bible available to the laity, and the view that equated sola scriptura with liberty.  (Specifically, freedom of conscience).  It is, therefore, probably not a coincidence that they wrote the Constitution they used simple language with a minimum of legalese. This was (presumably) done to make the Constitution accessible to the general public.

It should be interpreted in a way that makes sense to the general public, and that allows a judge to point to a actual language in the constitution as the basis for a particular opinion.  That means none of this elaborate body of tradition with one opinion building on another to create a whole castle spun out of air, such as a constitutional right to abortion or to same sex marriage.  And just for what it is worth, plenty of experts get cynical about the process.  One of my constitutional law professors would speak about reading the Constitution with a "magic decoder ring."  And in our six-week prep class the constitutional law lecturer went so far as to say, "Don't pay attention to what the Constitution actually says.  Follow what the judges say it says."  Or one of my teachers as a paralegal, "From the right to be free of  unreasonable searches and seizures comes the right to privacy.  And from the right to privacy comes the right to abortion.  Well, don't laugh,  It's what they said."  I am opposed to any interpretation of the Constitution that encourages this sort of cynicism.

The textual or sola scriptura approach is not the same as originalism.  Granted, originalism can protect against something really nutty like a constitutional right to abortion or same sex marriage. But it makes the Constitution inaccessible to the general public.  Indeed, as this post brilliantly puts it, it even makes the Constitution  inaccessible to judges.  Only a narrow priesthood of professional historians can understand it;

[O]ur constitutional rights will be defined by amateur historians’ ability to cherry-pick the historical record. 

Aside from the epistemological problems, it’s worth noting how utterly non-transparent and undemocratic this methodology is. In the Middle Ages, priests kept power by using a language (Latin) that only the educated elite could understand. Similarly, the Court’s tedious examination of dueling history books makes the opinion unreadable, and prevents the larger public from having a meaningful debate about it.
I mean, this is a problem with law opinions more generally. But debates about text and structure and policy and institutional allocation of power are least potentially accessible to the public. 

Hell, I teach law and I can’t even get through the tangled 157-page mess that came down this morning. More to the point, it’s impossible for me to realistically assess the historical validity of these claims. To have fully informed decisions on close historical questions like these from the 1790s and earlier would require you to take a few years off and work on a history Ph.D. Thus, the dueling history opinions are not so much wrong, as they are unverifiable either way. I’m honestly not competent to assess them. 

It shouldn’t be that complicated. If it is, we’re doing something wrong.

He then goes on to discuss the problems with the assumption that decisions should address the issues of the 18th Century rather than the issues of today.  At the same time, he concedes that historical background can be useful when the record is clear (for instance, putting soldiers on 25 cent pieces is not an unconstitutional "quartering" of troops).

I would add, it is also useful when the text is not easily accessible.  For instance, "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."  To most people these days, that would be incomprehensible.  A little historical background, however, makes the meaning clear.  In the 18th Century, a "capitation" was a head tax.  A "direct" tax was either a head tax or a property tax.  So this section says that "direct" federal taxes must be head taxes rather than property taxes. The census previously mentioned is a  mandatory ten-year census that would base representation and direct taxation on all "free persons" and three-fifths of all "other persons," i.e., slaves.  In other words, this section specifically bans a property tax on slaves and says that only three-fifths of slaves may be counted in a head tax.  No wonder this section is unclear; it was intended to obfuscate!

This is not to deny that even under a textual basis some decisions will be controversial.  But at least in cases of such controversy, judges will be able to point to a specific clause of the Constitution as what they are applying.