Two Fallacies that Cause (Excessive) Libertarian Despair:
Tyler Cowen's counsel of libertarian despair (discussed in my previous post), and other similar works by fearful libertarians (e.g. - this slightly less pessimistic contribution to the same symposium by Brink Lindsey) are, in my view heavily influenced by two important fallacies that lead many libertarians to be more pessimistic than is warranted.
I. The All or Nothing Fallacy.
One is the "all or nothing" fallacy, which leads many to conclude that because libertarians can't completely eliminate excessive government, that means that we can't achieve anything worthwhile by trying to cut it back incrementally. For example, as I argued in my previous post, Tyler provides good reasons for believing that complete victory is impossible, but almost no argument against the possibility of partial success. Of course, the inability to achieve complete success is not unique to libertarianism. Our liberal, conservative, and socialist rivals have the same problem. Liberals are far from achieving their goal of creating a European-size welfare state in the US, and have little prospect of succeeding in the near future; social conservatives are probably even farther away from fully imposing "traditional values" on society and that goal keeps on slipping even further away. Some liberals and conservatives have given up because of all or nothing thinking, but most recognize that partial success is still worth striving for. We should do likewise.
The all or nothing fallacy is not unique to libertarians. You see it also in the views of those 1960s radicals who believed that nothing short of complete social revolution was worth striving for. But for reasons that I can't fully explain, I think that libertarian activists are, on average, more susceptible to this error than liberals or conservatives.
II. Overstating the Importance of Recent Events.
The second fallacy is overstating the importance of the most recent events. Psychologists call this the "availability heuristic." We overvalue the significance of recent data because they tend to be uppermost in our minds and of course get more coverage in the media. Thus, many libertarians despair because Bush's "big government" conservatism has enlarged the state, while the Democrats have turned away from Bill Clinton's moderate, partly libertarian agenda. However, it is possible to point to equally bleak short periods in the past that were even worse, yet proved not to be a harbinger of the future. Between 1965 and 1975, for example, we saw 1) the rise of the Great Society, 2) government's mishandling of the Vietnam War, 3) Nixon's big government conservatism (even more thoroughgoing than Bush's, complete with price controls and a proposal for nationalized health care), 4) the growing popularity of socialist and communist ideology in much of the world, and 5) the beginning of the oil crisis, with its accompanying perverse government interventions. Yet libertarians would have been wrong to give up in 1975 merely because the most recent trends were against them. Indeed, the next twenty years saw substantial movement in a libertarian direction both in the US, and in many other parts of the world. And we would be equally wrong to give up because of today's less extreme adverse trends. Because of our successes in the 1980s and 90s, we - unlike the libertarians of 1975 - have grown used to the idea that we are destined to win, and thereby more likely to be deeply disappointed when we suffer setbacks. This reaction is understandable, but wrongheaded.
That is not to say that libertarianism does not face serious challenges or that libertarians haven't sometimes shot themselves in the foot, as with the waste of time and resources poured into the Libertarian Party. It does not even prove that we have not entered a period where the libertarian cause has, for some reason, become hopeless. However, we are not justified in despairing merely because we have failed to win a complete victory or because we have suffered several years of political setbacks. Those who counsel despair need much stronger evidence than that to prove their point.
I've been mulling over Brian Tamanaha's post "Losing My Stomach for Honest Academic Exchange," in which he reflects on the tension between personal relationships and academic integrity. The post was prompted by his discomfort at the prospect of writing a negative review of work by a fellow academic, and his "remorse" over making critical comments in another recent review.
From now on, to avoid being in these situations, I have resolved to only write reviews for books that I truly like (which I have done with pleasure a number of times). I feel like a coward, shirking my responsibility as an academic.
It would be easy to pile on Tamanaha for allowing his desire to maintain personal relationships to overcome his commitment to academic integrity. In this he is surely not alone, however. Many academics mistake a refusal to be forthright and critical for the virtue of civility, and academia as a whole is much the worse for it.
Yet Tamanaha deserves credit for both for raising this issue and engaging it with such candor and self-awareness. Few of our academic colleagues would openly acknowledge a tendency to choose a superficial collegiality over honest academic exchange. Indeed, far too many academics pretend to engage in serious discourse when doing little more than mutual back-scratching. This may advance careers but it is corrosive of serious academic standards. It is the professional equivalent of grade inflation.
To Tamanaha's further credit he recognizes the threat this tendency poses to the entire academic enterprise.
It’s not as much fun as it used to be to have a frank exchange of ideas, at least for me. More importantly, if we all start censoring our critical thoughts out of a desire not to offend others, or to avoid provoking a backlash, academic discourse will suffer. For this reason, I hope others do not share in my cowardice.
New Mexico Governor Bill Richardson wants to be President, but that will not stop him from signing a bill legalizing medical marijuana in limited circumstances. "So what if it's risky? It's the right thing to do," Richardson told the press. Then again, New Mexico will be the twelfth state to approve medical marijuana, so maybe the move will actually help Richardson's campaign. (Link via TalkLeft)
I have long taken it for granted that there are some things worse than death. Certainly torture, if severe enough, can be worse. Apparently this is not a universal view, however.
At Balkinization, Marty Lederman points to this interview with John Yoo in which he says "death is worse than torture," and therefore torture must be permissible in some circumstances:
death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured? [emphasis added]
The second half of Yoo's quote is the fairly traditional (albeit highly controversial) utilitarian argument that torture may be justified in extreme circumstances to save innocent life. In the first half of the quote, however, Yoo suggests that because "death is worse," then if one is allowed to kill one's enemy in wartime, one must be allowed to do anything else to one's enemy as well. Whatever one's view of the acceptability of torture, this can't be right. Unless one is going to argue that torture would be justified whenever killing would be justified, then the lack of an absolute prohibition on killing cannot establish that an absolute prohibition on torture is not "reasonable."
Bill Evans Trio Plays "Waltz for Debby":
Bill Evans was one of the most influential pianists of the 1960s; along with McCoy Tyner and Herbie Hancock, he helped define the sound of modern jazz piano. Evans is probably most famous for his trio recordings live at the Village Vanguard in 1961 with drummer Paul Motian and the amazing bassist Scott LaFaro. The recordings were divided into two albums, Waltz for Debby and Sunday at the Village Vanguard, and have since been combined together with the band's introductions and informal conversation into a three-disc set, The Complete Village Vanguard Recordings. (Interestingly, Paul Motian still regularly plays at the Village Vanguard, although his style today is 180 degrees from what it was with Evans.)
YouTube doesn't have any recordings of that wonderful trio — tragically, LaFaro died in a car acccident 10 days after the Vanguard recordings were made — but it does have some terrific Bill Evans trio performances from just a few years later. My favorite is this 1965 performance of Waltz for Debby with Chuck Israels on bass and Larry Bunker on drums. The performance is much too brief — only 4:30 — but it's still excellent.
Enjoy. And be sure to click on the YouTube link to see a number of additional performances with the same trio.
I was delighted to open my Washington Post this morning and see that the Real Estate Section of the paper is now carrying the column by the Mortgage Professor, Jack Guttentag. I've been a regular to his web site over the past couple of years, and I'm glad that he is going to be made widely available here. I've always liked Guttentag because he is not solely a practical personal finance advisor nor an abstract economic theorist, but rather is a great combination of the two.
Today's column is a gem . It takes on the faddish and confused proposals to impose the "suitability" requirement developed in securities law onto mortgage lending. Consider:
The case for a mortgage suitability standard looks both simple and plausible, and it appears to have been making headway in Washington. A federal suitability rule has worked in the securities industry, the argument goes, so why wouldn't it work with home mortgages?
One major difference between the two markets is that the securities market has only one problem to which suitability is directed: preventing unsophisticated investors of limited means from being sold securities that are too risky for them. The home mortgage market, in contrast, has multiple problems for which suitability has been offered as a remedy.
First he notes that unlike the securities market, suitability in the mortgage market is directed at the wrong parties to resolve the underlying problem. But then he observes the more fundamental point about trying to impose a suitability requirement in this area:
The objectives of mortgage borrowers, in contrast, are diverse, complex and often not known by the loan provider. Here are five objectives that have been reported to me by borrowers who have selected option ARMs and interest-only loans:
· Reduce cash outflow to invest the excess in securities.
· Reduce cash outflow to pay down a second mortgage.
· Pay principal when convenient.
· Buy more house.
· Reduce payment to avoid default.
I sometimes get involved in an exchange with borrowers about whether their objectives are worth the risk, and sometimes I express my opinion to them quite forcefully. I would not want the legal right to overrule them, however, because I am not that smart.
As I said, I've been reading the Mortgage Professor for years and I recommended him strongly for those interested in both the practicalities and policies of mortgage issues. I often agree with him and even when I don't he is always informative.
Does Libertarian Success Just Produce More Government, and Should We Give Up Trying to Shrink It?
In his contribution to the recent Cato Unbound debate on Brian Doherty's essay on prospects for libertarianism, Tyler Cowen claims that the success of libertarian ideas leads to bigger government. He also contends that this proves that libertarians should largely abandon the effort to shrink the modern state and instead focus on other issues:
Libertarian ideas also have improved the quality of government. Few American politicians advocate central planning or an economy built around collective bargaining. Marxism has retreated in intellectual disgrace.
Those developments have brought us much greater wealth and much greater liberty, at least in the positive sense of greater life opportunities. They’ve also brought much bigger government. The more wealth we have, the more government we can afford. Furthermore, the better government operates, the more government people will demand. That is the fundamental paradox of libertarianism. Many initial victories bring later defeats.
I have enormous respect for Tyler and his scholarship, but in this case I think he's wrong. It is true that we can afford more government if we become wealthier. But more wealth also enables us to afford more of everything else. The extra increment of wealth will only be used to buy more government if people believe that to be a better use of the additional resources than other possible purchases. And of course the whole point of libertarianism is that purchasing more government is rarely, if ever, a good deal relative to the available alternatives. Moreover, if Tyler is correct that "the better government operates, the more government people will demand," then we should expect the growth of government to focus on those areas where libertarian reforms have made government operate better. Tyler himself lists several such fields, including monetary policy, policy towards the high tech sector, and a less perverse tax system. It is, striking, however, that most of the growth in government over the last 30 years has not occurred in these areas. It has instead focused on Social Security, medical care, agricultural subsidies, and other areas where libertarian ideas have had little or no impact on policy, and fairly crude "command and control" statism remains the name of the game.
Tyler next argues that, even though in his view (and mine) libertarians are right to believe that most of the post-New Deal regulatory/welfare state is a bad idea, they should largely stop fighting it because big government and growing wealth are a "package deal:"
The major libertarian response to modernity is simply to wish that the package deal we face isn’t a package deal. But it is, and that is why libertarians are becoming intellectually less important compared to, say, the 1970s or 1980s. So much of libertarianism has become a series of complaints about voter ignorance, or against the motives of special interest groups. The complaints are largely true, but many of the battles are losing ones. No, we should not be extreme fatalists, but the welfare state is here to stay, whether we like it or not ....
Let’s not fight the last battle or the last war. Let’s not obsess over all the interventions represented by the New Deal, even though I would agree that most of those policies were bad ideas.
Tyler is probably right to suppose that we can't achieve a complete rollback of the post-New Deal state in the foreseeable future. It does not follow that it is impossible to make large cutbacks in the size of government that fall short of the libertarian ideal. There is no theoretical reason to believe that big government and modern prosperity are a "package deal" to such an extent that such cuts are impossible. Indeed, empirical evidence suggests the opposite. In just a few years, Ireland has gone from being a fairly typical big government European-style social democracy, to a set of policies that have allowed to almost catch up with the US in the Index of Economic Freedom (a measure that ranks overall degree to which a nation pursues free market as opposed to statist policies). New Zealand and Australia, which also pursued quite statist policies until recently, have actually surpassed the United States on the index, and Singapore has always ranked well ahead.
None of this proves that cutting the size of government is easy or that every country can imitate Ireland's success. But it does suggest that Tyler is wrong to suppose that big government and modernity are so closely intertwined that major cuts in government are impossible. At the very least, we need much stronger evidence to demonstrate the existence of Tyler's "package deal" than he has provided.
Tyler also contends that, instead of trying to cut government, libertarians should refocus on issues such as global warming, nuclear terrorism, and intellectual property. We should indeed give careful consideration to these issues. But it does not follow that that requires us to give up the fight against big government. To the contrary, if (as Tyler believes), we are right about the harmful effects of overgrown government, reducing its size is likely to improve our ability to deal with these newer dangers. To the extent that reducing inefficient or harmful government programs increases our wealth, that creates more resources that can be devoted to combatting the threats Tyler points to. Moreover, as I have argued on many occasions (e.g. - here), a smaller government will be easier for rationally ignorant voters to monitor, and thus more likely to perform well. Finally, as Bryan Caplan points out in his response to Tyler, the new issues themselves might well be better addressed (at least in part) through private sector rather than political initiatives.
Bottom line: Libertarians are unlikely to win a complete victory over the modern state. But that doesn't mean we shouldn't try for incremental movement in that direction. The impossibility of total victory doesn't mean that we should give up the fight. Partial success is a lot better than admitting defeat.
UPDATE: It is theoretically possible that we can cut government down to roughly the size that currently prevails in the US, Ireland, or New Zealand, but no further. If so, Tyler would be correct as to the prospects for libertarianism in the US, but wrong about the vast majority of the world. However, Tyler provides no reason to believe that the current size of government in these countries is indeed the smallest that is politically feasible. So even in the most free market nations in the developed world, we should not rule out the possibility of major cuts in the size of government.
Two news items this week, one closely following the other, together shed some interesting light on the current state of "Don't Ask, Don't Tell." Under DADT, some 10,000 military personnel — including many with critical skills in which there's a shortage, like Arab linguists — have been expelled from service solely because it's learned they're gay.
First, on Monday, the Chairman of the Joint Chiefs of Staff, Marine Gen. Peter Pace, was asked by newspaper reporters to explain why he supports DADT. According to the Chicago Tribune, Pace defended the policy thus:
"I believe homosexual acts between two individuals are immoral and that we should not condone immoral acts," Pace said in a wide-ranging discussion with Tribune editors and reporters in Chicago. "I do not believe the United States is well served by a policy that says it is OK to be immoral in any way.
"As an individual, I would not want [acceptance of gay behavior] to be our policy, just like I would not want it to be our policy that if we were to find out that so-and-so was sleeping with somebody else's wife, that we would just look the other way, which we do not. We prosecute that kind of immoral behavior," Pace said.
The comments generated lots of criticism, including from the Secretary of Defense, who said that "personal opinion" about the morality of homosexuality had no place in the debate over the policy. Pace himself clarified that he was expressing only his personal views.
A significant and growing minority of Americans disagree with Pace that homosexual acts are immoral. These include not just Democrats like Barack Obama, but Republicans like conservative ex-military Sen. John Warner, who said this week that he "strongly disagreed" with Pace that homosexual acts are immoral. Most Americans also think gays should be able to serve in the military.
Even if one thought homosexual acts were immoral, it doesn't necessarily follow they should be disqualified from service. Lots of people do immoral things — lie, cheat, steal, commit adultery, commit crimes, take the Lord's name in vain, are gluttonous and lustful, worship idols — but are not automatically disqualified from service on that account.
Further, Pace's view that allowing gays to serve openly would send a message that we condone immorality is very questionable and oddly reductionist. We don't send a message that lying is OK by allowing liars to serve. And the predominant message of allowing gays to serve openly would not seem to be that we condone immorality but that we believe it is good and moral to serve one's country, especially in its hour of need. Why does Pace think that everything a gay person does is mainly about sex rather than, say, honorably serving one's country, as thousands have done in the wars in Iraq and Afghanistan?
On a smaller note we don't, pace Pace, "prosecute" people for homosexual acts (or even adultery) and haven't in most states for several decades. But in this era of recruitment shortages we increasingly do welcome into military service those who have actually been prosecuted and convicted of real crimes.
All that aside, I think Gen. Pace did us a service by frankly expressing his own moral perspective in defense of the policy. I suspect that a great many people, in and out of the military, share his idealistic perspective and would have answered in just the way he did. Though Pace and others would no doubt advance other reasons for excluding gays from service, it's revealing that the moral objections came first.
To see why Gen. Pace's honesty is so valuable, consider the second DADT event of the week. We learned on Wednesday that discharges for homosexuality dropped again in 2006, down to 612 from 1,227 in 2001. That's right, since the advent of the post 9/11 phase of the war on terror, when the country most needs the skills and bodies of its citizens on the front lines, expulsions for homosexuality have dropped by 50%.
The common and practical concerns about service by gay personnel expressed when President Clinton proposed lifting the ban in 1993 — that there would be problems of unit cohesion and morale, damage to enlistment and retention rates, invasion of soldiers' privacy — seem to have been subordinated to the intense need for the service of these people we've trained and invested in. When unit cohesion and morale are most important, in time of war, homosexuality is comparatively unimportant. The experience of other nations' militaries is that the presence of open homosexuals is not disruptive and that their service is more valuable than whatever small amount of unease it might cause a few straight soldiers.
Putting these two events together — the morality concerns expressed by Gen. Pace and the practical decline in DADT enforcement — yields an insight about how the respective views on the policy have flipped since 1993. Back then, advocates of gay military service were scolded that the military is an intensely practical venture whose mission is to deter and fight wars — not a forum for advancing idealistic social causes and abstractions (e.g., the egalitarian claims of homosexuals).
Now advocates of gay military service argue with considerable and growing empirical support that the military is an intensely practical venture whose mission to deter and fight wars is aided by allowing gays to serve without fear of reprisal and expulsion — not a forum for advancing idealistic social causes and abstractions (e.g., the idea that homosexuality is immoral). It is now opponents of gay military service who are left to advance a form of idealism that seems increasingly disconnected from, and unsupported by, considerations of military need. Unpersuasive in abstraction, opponents of DADT have increasingly shifted to the practical; shorn of a practical foundation, supporters of DADT must increasingly shift to the abstract.
"Larry, we miss you. . . . Don't get too comfortable.":
Both Andrew Sullivan and Josh Marshall are speculating about who might replace Attorney General Alberto Gonzales if Gonzales is forced to step down. I think the most likely pick would be Larry Thompson, the Deputy AG (the #2 person at Justice) from 2001 to 2003. Thompson was in the running for the AG slot last time, and he was also mentioned as a possible Supreme Court pick in 2005. However, Thompson was passed over both times and now serves as General Counsel of PepsiCo.
Thompson seems like a natural pick if Gonzales is forced out. On one hand, he's an experienced former insider who is apparently very well-liked in the Administration. On the other hand, he has enough independence from the Administration (having been out of government for 4 years, and himself being a former U.S. Attorney) that it would give DOJ a fresh start.
Of course, we don't yet know Gonzales's future, so right now this is just a hypothetical question. But hey, we law professors love our hypothetical questions. (Incidentally, the title of the post is a quote from a speech president Bush gave in 2005 in Buffalo, as detailed in this story.)
Dorf on Raich:
Professor Michael Dorf, of Columbia Law School, had an interesting post on Dorf on Law yesterday on the Raich case that mirrors some of my thoughts in today's Journal.
The court also rejected her substantive due process claim, largely on the strength of Washington v. Glucksberg. The court plausibly read Glucksberg to require a narrow "careful" definition of the right in question, which it defined as the right to use medical marijuana. Not surprisingly, it found that society had not yet recognized any such right as fundamental.
To my mind, this only shows the poverty of the Glucksberg approach. The real question is whether the government can ban a medical treatment necessary for sustaining life on the ground that Congress by fiat declares that the medical treatment is unnecessary or not efficacious, without granting a litigant any right to present factual evidence to the contrary. The answer to that question could be yes. We might think that Congress, or a state, or an administrative agency, is better situated to make medical judgments — even if sometimes those medical judgments are politically motivated — than are the courts. Or we might think that the judgment of Congress is entitled to a rebuttable presumption of correctness. But under the Glucksberg approach, we don't even ask the question.
By coincidence Mike presented a paper at my Advanced Constitutional Law Seminar at Georgetown yesterday and he and I discussed in class why Judge Pregerson, a stalwart liberal on the Ninth Circuit, might have ruled as he did. Mike reports on our exchange (as, a propos my previous post, I fully expected he would), and offers his own thoughts here.
But then, to repeat the question I asked yesterday, why did Judge Pregerson not also consider that in Lawrence the Supreme Court did not re-frame the issue in a way that undermined the plaintiffs’ claims? Instead of characterizing that case as involving, for example, a general right to sexual liberty (likely too broad to win approval) or a right to have same-sex anal sex (likely too narrow to win approval), Justice Kennedy accepted the plaintiffs’ framing of a right of intimate association that includes control over adult consensual sexual acts. The Lawrence opinion doesn’t exactly say that there is such a right, because it’s unclear what level of scrutiny the Court applies, but it also doesn’t adopt the Glucksberg framing. So what gives with Pregerson?
Professor Barnett suggested that Pregerson accepted the Glucksberg approach because he, Pregerson, was predicting that if the case made it up to the Supreme Court, there would be five votes for using that approach---at least in a case involving medical marijuana. And, Barnett said, that’s probably a good prediction in light of the questions Justice Kennedy asked during the oral argument in Raich, which were quite hostile to the plaintiffs’ arguments.
For me, this raises the question of whether a lower court judge should base his ruling in an area of uncertainty on his prediction of how individual Justices currently on the Court would vote, rather than his own best judgment about what the law is or should be. The Supreme Court decision in Raich 1 was not, after all, a holding on the substantive due process issue, and so nothing in that case bound the 9th Circuit in in Raich 2. My own view, which I argued at some length in a 1995 article in the UCLA Law Review, is that except in a few unusual circumstances, the job of lower court judges is to make their best legal judgment, not to predict the legal judgment of those who may end up reversing them. Here, I’ll just reproduce the barest core of the argument: "The prediction [approach] undermines the ideal of the impartial judge. It conceptualizes a high court as the sum total of the views of the individual judges. By contrast, the ideal of impartiality requires that judges attempt to separate their individual views from the requirements of the law. Thus, even if the high court judges are persons of impeccable character, the prediction model undermines the ideal of impartiality by equating particular high court judges' views with the law."
Later in the Spring, I will be contributing to a symposium sponsored by the Michigan Law Review on Glucksburg, so that will give me an opportunity to expand greatly my the critique of that approach.
Raich and Scrutiny Land:
I have an op-ed in today's Wall Street Journal on the Raich case that the editors entitled, Reefer Madness (link good for 7 days). I explain why
the rejection of Ms. Raich's constitutional claim highlights a serious problem with the Supreme Court's current approach to protecting liberty under the Due Process Clauses of the Fifth and Fourteenth Amendments. Ever since the New Deal, the Court will only consider challenges to a law if the liberty being restricted is a "fundamental right." Unless the liberty is characterized by the Court as "fundamental," it will not evaluate or "scrutinize" the government's claim that its restrictions are truly necessary. With laws restricting mere "liberty interests" not deemed fundamental, the Court will blindly accept the government's claim that its restriction is "reasonable."
In short, to get into "Scrutiny Land" — where the government is forced to justify its restrictions on liberty — a person such as Ms. Raich must jump through the hoop of showing that the liberty she claims is fundamental. Otherwise she automatically loses.
So what, you ask, makes some liberties fundamental and others not? According to the Supreme Court, either the right must be "implicit in the concept of ordered liberty" or it must be "deeply rooted in the Nation's history and traditions." Under either formulation, however, how a right or liberty is defined makes all the difference. Because the very same act may be accurately defined either narrowly or broadly, a court's choice of definition will dictate the outcome of the case.
Here's how.
Angel Raich contended that using the CSA against her infringed her right to preserve her life. If any right is fundamental, this one is: the right to "life" is specifically mentioned in the Due Process Clause itself, and even the federal Partial Birth Abortion Act, like the abortion law struck down in Roe v. Wade, includes an exception to its ban when the procedure is necessary to protect "the life of a mother." So if the right at issue in Ms. Raich's case is the right to preserve her life, she has jumped through the fundamental rights hoop and entered Scrutiny Land.
How does the government respond to this? By claiming that the liberty in question is the right to use cannabis for medical purposes, which it denies is either "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history or traditions." Setting aside the embarrassing historical facts that marijuana was completely unregulated in the United States until the mid-20th century, and was widely used as a medication for most of our history, it is still obviously much harder to claim that a right to use cannabis for medical purposes meets either of these tests, at least as compared with a right to preserve one's life.
Given that everything turns on the description of the right, which one is correct? The dirty little secret of constitutional law is that they are both right. Ms. Raich is preserving her life and she is using cannabis for medical purposes. Because whether a liberty gets protected under the Due Process Clause depends on which accurate description a court chooses to accept, a court may rule however it wishes simply by choosing how to describe the right.
When the Ninth Circuit accepted the government's description of the right in question, the outcome followed like night follows day — because a "right to use cannabis for medical purposes" is not deeply rooted, etc., it was not fundamental. Because it was not fundamental, Ms. Raich could not enter Scrutiny Land, and her challenge failed.
Naturally, I would recommend reading the whole thing. (I will open comments on my next post, so today's comments on Raich are in one location.)
I haven't seen anyone else cite it; it's from the Journal of the Virginia House of Burgesses, June 2, 1757, reporting on a "Petition of sundry Freeholders, Inhabitants of the County of Middlesex," which set forth (emphasis added):
That a Sum, not exceeding £1000, was expressly limitted by Law, for constructing a Fort at Winchester, and they are informed £10,000 hath been expended. — That a well regulated Militia is the true and natural Defence of every free State, and praying that the Expence of building the Fort, and the Conduct of the Forces in the Pay of this Colony may be enquired to: And that if it is necessary to lay any more Taxes the same may be laid on the nett Produce of the Planter's labor, and raised within the Year ....
Further evidence, it seems to me, that "free state" in the Second Amendment means "free country", and not "state of the union independent of undue federal power." In 1757, no-one was thinking of Virginia as a "State," or talking about its independence to the colonial legislature. But, as Blackstone made clear in 1765, people were reasoning — whether or not correctly, or in a way applicable to modern conditions — that a free (in the sense of nontyrannical) country was best defended by the militia. And if the Colony of Virginia was seen as part of the free State called Great Britain, then it's quite reasonable that D.C. would be part of the free State called the U.S.
to make his wife a victim of his own sordidness." Words from George Bishop, Every Woman Her Own Lawyer: A Private Guide in All Matters of Law, of Essential Interest to Women, and by the Aid of Which Every Female May, in Whatever Situation, Understand Her Legal Course and Redress, and Be Her Own Legal Adviser (1858). More (emphasis in original):
What a Wife may do with a Miserly or Penurious Husband.—When a husband, by reason of penuriousness, meanly refuses to supply his wife with necessaries suitable to her rank and condition, the wife may obtain them of any tradesman or tradesmen, and the husband must pay the bills of the same.
On the other hand (emphasis also in original), A Wife can not maliciously run her husband into debt.
The Tikkun piece by Kenneth Roth referenced in my previous post provides some interesting insight into the mind of a leading modern NGO/human rights advocate, to wit:
My father had the good fortune to escape Nazi Germany in July of 1938. Among the lessons that I drew from his stories was that military force alone is not enough to combat the world’s evils. Clearly military force was needed to stop Hitler, but military force was also a very blunt instrument, it took a long time to play out, and it didn’t work until six million Jews had already been killed.
That's a rather odd lesson to draw, I think. Historians seem to agree that if Great Britain and France had challanged Germany militarily any time before the annexation of the Sudetanland, Germany would have been at a decided disadvantage, and would have had to retreat.
What is needed in addition to a readiness to use military force is a focus on the development of ethical views. We need a strong public morality that does not allow such atrocities to occur in the first place. I am not a pacifist by any means. I believe in using military force in places like Darfur, where it is necessary to stop the killing.
Note the example Roth gives. It's okay to use military force to stop genocide or other massive human rights violations, but not, e.g., in self-defense.
Fifty-eight years ago today (Dec. 10, 2006), in the aftermath of the Second World War, the UN General Assembly adopted the Universal Declaration of Human Rights, not as a binding treaty but as a declaration. From this broad statement of principles emerged a series of legally binding treaties. Some are quite familiar to Americans, such as the International Covenant on Civil and Political Rights, which, in many respects, looks like the U.S. Bill of Rights. Some are less familiar, such as the International Covenant on Economic, Social and Cultural Rights, which addresses issues such as the right to education, the right to housing, and the right to work—necessities that Americans often don’t think of as human rights, but that most of the world does. There are also specialized treaties on such matters as genocide, torture, racial discrimination, and the rights of women and children....
Now, there are some frustrating limits to international human rights law. First, it does not establish an absolute right to education or to food, but rather it says that governments have a duty to progressively realize those rights on the basis of available resources. So it speaks in terms of trends and intentions rather than absolute results.
Second, human rights law speaks only to governments, not to private individuals who may express discriminatory attitudes.
So, Kenneth Roth thinks that the "positive rights" of international law don't go far enough. This is surely enough to make anyone with libertarian sympathies shudder. But even left-wing civil libertarians may shudder at his disappointment that international law doesn't ban "private individuals" from expressing "discriminatory attitudes."
Another concept that is often a source of confusion is that of proportionality. You often hear people say that so-and-so responded in a disproportionate way or that a specific attack was not proportionate. The confusion lies in the fact that proportionality has two different meanings; one of them is of concern to organizations like Human Rights Watch, the other is not. What we look at is whether, in a particular attack, the reasonably anticipated military advantage of destroying a target is justified in light of the likely civilian costs. For example, if you expect to kill an entire family in order to eliminate one foot soldier, that would probably be considered a disproportionate attack. This jus in bello sense of proportionality, as codified by the Geneva Conventions, requires constantly weighing expected civilian cost against military advantage.
If you're wondering how in God's name an NGO, with no knowledge of various secrets governments are privy to, at best a shaky handle on the relevant strategic objectives, an assumedly limited knowledge of military tactics, and so forth, can possibility from its position determine in hindsight whether a "the reasonably anticipated miliary advantage" of destroying any parituicular target "is justified in light of the likely civilian costs," well, so am I. [And Roth has previously expressed the completely unworkable position that if one is engaged in war, one must treat the other side's civilians as equally valuable to one's own; in other words, if you can save 99 of your own civilians by bombing a target that would result in the deaths of 100 enemy civilians, doing so would violate international law.
We also are challenging America’s method of fighting terrorism. There is nothing that is a greater affront to human rights principles than the deliberate killing of civilians. But the Bush administration has chosen to fight terrorism without regard to human rights.
Close your eyes. Think for a moment of what Iraq and Afghanistan would look like right now if the Bush Administration paid no attention to human rights. One can think that the Administration actually has some regard for human rights, or that it thinks that the negative publicity from, say, massacring civilians who support Sadrists, the Taliban, and Sunni terrorists in Iraq would outweight the benefits, but the idea that the U.S. is indiscriminately violating human rights, given the firepower available to the U.S. military, is facially absurd. Such overstatement hardly lends credibility to Roth and HRW.
Overall, I think it's fair to conclude that Roth and HRW, like Amnesty International, are part of the international far left. That's not to say that they don't sometimes do yeoman's work on human rights issues, but that their reports, public statements, et al., must be read critically in light of their underlying ideology, which despite Roth's protestations, is essentially pacifist.
UPDATE: Another stray thought: I'm sure that circa 1933, or even 1938, "public morality" in Germany was such that the German public would have overwhelmingly opposed the proposition that their government should murder six million Jewish civilians and another six million or so others for the greater glory of the Reich and the German people. That didn't stop it from happening. "Public morality" is hardly enough, especially in dictatorships where the leaders can feel free to ignore the public, suppress evidence of what they are doing, and manipulate public opinion through control of the media.
Brooklyn (and soon Cardozo) law professor Tony Sebok has a very interesting column on a recent German Constitutional Court decision holding Germany's absolute ban on contingency fees unconstitutional.
Yesterday a new Ohio state law went into effect barring localities from adopting more stringent gun control ordinances than explicitly permitted by state law. The city of Cleveland maintains that this law violates the city's home rule rights, and filed suit to challenge the uniform state rule. The Plain Dealer reports here. Given how Ohio courts have dealt with home rule issues in the past, I would expect Cleveland's suit to fail.
Via Marty Lederman at SCOTUSBlog comes word that the appellee in FEC v. Wisconsin Right to Life will ask the Supreme Court to "reconsider" the holding in McConnell v. FEC upholding the constitutionality of a requirement that corporations to use separate, segregated PAC funds to pay for election-related advertising. If this is on the table, presumably the analogous state-law holding in Austin v. Michigan Chamber of Commerce will be too. This will make for some long briefs -- the appellees are getting 70 pages -- and an interesting decision. Stay tuned.
Every single poll about the upcoming French presidential election is consistent with the following statements:
Moderate-right candidate François Bayrou would beat either of the other two main candidates, conservative Nicolas Sarkozy or socialist Ségolène Royal, in a two-way race. The second round of the presidential elections is such a two-way race, among the top two vote-getters in the first round.
Not only would Bayrou beat Sarkozy handily in the second round, he would also beat Royal by an even greater margin than Sarkozy would (according to the most recent poll that asked the question, on Feb. 27).
But Bayrou has been coming in third place in all the polls (except the Mar. 9 poll, where he was tied with Royal at 23%). Of course there's the margin of error and all that. But chances are he won't make it to the second round, even though he would beat either of the other two main candidates if he got there.
Making some simplifying assumptions -- all Le Pen voters support the most right-wing candidate, and all "other" voters support the most left-wing candidate (this makes sense because they're all communists or greens, except for a 1% conservative traditionalist candidate) -- and putting these together with the second-round poll results from Feb. 27, I conclude that Bayrou is the second choice of 75% of French voters.
This is why Bayrou only got 17% in the Feb. 27 first-round poll (to Sarkozy's 31 and Royal's 25) but would still beat Sarkozy 54-46 and Royal 55-45. But under a runoff system (or a rank-order voting system, which is similar in practice to what the French are doing here), someone who's everyone's second choice gets eliminated early on. But any other system probably has even worse pathologies.
Moral: You can't win!
For previous posts of mine on France and the French elections, see here, here, here, and here. Note my retraction here. Note also that Bayrou said, back in 2002, when he refused to have his party, the UDF, be assimilated into the new umbrella conservative party, the UMP: "I won't be phagocyted or digested by anyone." (Said a gay friend of mine: "O.K.! I won't cite him!")
Advocates of splitting the U.S. Court of Appeals for the Ninth Circuit often point to the court's high reversal rate by the Supreme Court. An editorial in Monday's W$J, for instance, noted that the Ninth is 0-8 so far this Supreme Court term. Tallying the Justices' votes in cases reviewing Ninth Circuit decisions, the justices have gone against the Ninth 67-5.
Accepting that the Ninth Circuit appears to be out of step with the Supreme Court, the interesting question for researchers is why? Some think it is a partial consequence of the court being too big. With so many judges, and without full court en bancs, the argument goes, the Ninth is less able to maintain a coherent jurisprudence. Others argue it's just a question of ideology, and that the Ninth Circuit has more than its share of independent-minded judicial ideologues. Which, if either, of these is true? And would splitting the Ninth do anything about it?
This paper sorts out the cause of the Ninth Circuit’s reversal rate by looking at the Court’s relationship with the Supreme Court over the past twenty years. By looking at merits reversals, including unanimous reversals, and attempting a broader assessment of the Ninth Circuit’s status vis-à-vis the other circuits and the Supreme Court, I ultimately argue that both size (though indirectly) and ideological orientation influence the Ninth Circuit’s high reversal rate. These findings have broad implications for how we model the behavior of court of appeals judges and their relationship with the Supreme Court.
Scott's ultimate conclusion, however, is that a proposed split "would likely not have the effect of reducing the frequency with which the two courts would be reversed by the Supreme Court. "If that is the case, the case for splitting the Ninth will have to be made on other grounds.
I remain somewhat inclined to favor splitting the Ninth on size grounds alone. As an outsider, the size of the Court seems particularly unwieldy, and I have knee-jerk reaction against less-then-full-court en banc panels. One problem with division proposals is that it is difficult (if not impossible) to address the size issue without splitting up California into more than one circuit. In any event, for those interested in this issue, Scott's paper provides some interesting food for thought.
Today's New York Times has an article about a planned carbon sequestration demonstration by American Electric Power. The aim is to demonstrate a technology that can be used to remove carbon dioxide from coal emissions so that the CO2 can be buried in the ground. According to the story, the project "will use a new process — so far tested only at laboratory scale — that uses chilled ammonia to absorb the gas for collection. The process was developed by Alstom, a major manufacturer of generating equipment, and aims to reduce the amount of energy required to capture the carbon dioxide."
The primary question the project will answer is not whether it is possible to remove carbon from coal emissions at a reasonable cost. The primary cost from this form of carbon sequestration comes from the energy required for the process itself. Reports the Times, "Some experts have estimated that nearly a third of a power plant’s energy output might be needed to pull carbon dioxide from the waste stream. Alstom hopes to hold it to 15 percent." If successful, the sequestration technology could find wide use if, as some expect, Congress adopts some sort of binding limits on carbon emissions in the next two years.
Truth in Advertising, or a Disgruntled Employee Filling Out the Form?
From the Australian Lawyers' Weekly, a response from the law firm gadens lawyers (three-dimensional but capital-letter-challenged) to a questionnaire about the firm's planned attendance at a yearly job fair:
Who from your firm will be attending?
A representative selection of some of our finest and most earnest young solicitors may attend, subject to their daily billing targets. If the stall is unattended, it’s because we’re all doing something more important.
Will they be making any presentations or giving talks?
Unlikely. They’re quite shy and very focused on their chargeable hours. We will be raffling off an interview every hour as usual, but this should be no cause for amusement or conversation.
What items/information will you have for graduates to take away?
We will be giving away a manila folder containing a sample time sheet, a list of after-hours dinner delivery services in the CBD, a guide to achieving optimum personal billing statistics during your summer clerkship and a bus ticket.
What are the three most important qualities you are looking for in a graduate employee?
A law degree; willingness to work till it hurts, then keep working; and the personality and personal values of a federal cabinet minister.
How many positions will you have available for graduates this year?
We prefer to hire in bulk to account for natural attrition and burnout. This year we are taking 150 graduates in the hope of there being six or seven of them left standing by February 2008. This is more than previously because we’ve been losing them faster than anticipated. Young people today just seem to be soft.
Just ran across the title of an edition of Cicero published by Benjamin Franklin, M.T. Cicero's Cato Major. I imagine it was a common way of writing Roman names back then, but it sounded more modern to me than either 18th century or classical, and made me smile. I could just imagine: "Hey, M.T., how are things?" "Just fine, J.C., how are you and Cn.P. getting along?"
As I understand it, the Romans abbreviated promiscuously in various inscriptions, and especially regularly abbreviated the first name; but my sense is that the norm was not to abbreviate the family name except where space was at a special premium, because, well, it's the family name, damn it. But I guess I should take it up with old B.F. himself.
And, yes, I know (or at least think I know) it should be C.I. (even though when composing this post I almost screwed it up by first writing G.J. and then C.J.), but J.C. sounded funnier.
Radio Interview on Kelo and Eminent Domain Reform:
My interview on the Kelo decision and eminent domain reform, with the Virginia Public Radio Program "With Good Reason" will be airing March 17-23. If you live in Virginia or the Washington, DC area, you can tune it at these stations and times over the course of the week. With Good Reason will also be posting a streaming archive of the interview on its website after it airs. So all of you who don't live in the area won't be deprived:).
You bet. I doubt the bill will get enacted. But if it is, and if the D.C. gun ban is mostly repealed (something the bill seems to try to do, though I haven't checked all the statutory cross-references to make sure it succeeds), that would make the declaratory and injunctive challenge at the heart of the Parker case moot, and would prevent en banc review and Supreme Court review.
Unless I'm mistaken, it would also lead to the D.C. Circuit panel decision's being vacated -- and thus losing its precedential effect -- under the so-called Munsingwear doctrine. "The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss."
Today, with the advance of forensic DNA technology, our desire to join Learned Hand’s optimism has given way to the reality of wrongful convictions -- a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed.[fn3]
[fn3] See, e.g., In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) (“[I]t is far worse to convict an innocent man than to let a guilty man go free.”); WILLIAM BLACKSTONE, 4 COMMENTARIES *352 (“[B]etter that ten guilty persons escape, than that one innocent suffer.”); see generally Alexander Volokh, n Guilty Men, 146 U. PA. L. REV. 173 (1997). Notably, DNA testing -- with its capacity to “exonerat[e] defendants (or those wrongly convicted) to a practical certainty,” Harvey II, 285 F.3d at 305 n.1 (Luttig, J., respecting the denial of rehearing en banc), and to identify the guilty -- promises to render, in some cases, both sides of Blackstone’s maxim.
I haven't read the opinion, and thus can't say whether I endorse its reasoning. But I fully endorse the practice of citing to the Volokh brothers whenever possible.
Not a line from Borat -- rather, it was the motto of The Providence Gazette and Country Journal, at least as of Aug. 9, 1777. Maybe we should adopt it as our motto, too.
Ninth Circuit Rules in Raich Case:
In a ruling issued this morning, the Ninth Circuit rejected our Due Process Clause and medical necessity claims. The opinion is here. I will have more comment on this later, but there are three hopeful aspects of its opinion. First, the panel went out of its way to suggest that Angel appears to qualify for a medical necessity defense should she be prosecuted criminally.
Although Raich appears to satisfy the factual predicate for a necessity defense, it is not clear whether the Supreme Court’s decision in United States v. Oakland Cannabis Buyers’ Cooperative forecloses a necessity defense to a prosecution of a seriously ill defendant under the Controlled Substances Act. 532 U.S. 483, 484 n.7 (2001). Similarly, whether the Controlled Substances Act encompasses a legislative “determination of values,” id. at 491, that would preclude a necessity defense is also an unanswered question. These are difficult issues, and in light of our conclusion below that Raich’s necessity claim is best resolved within the context of a specific prosecution under the Controlled Substances Act, where the issue would be fully joined, we do not attempt to answer them here.
Second, it maintained that if more states were to recognize a right to use cannabis for medical purposes, the Due Process Clause right asserted in this case (as it narrowly defines it) could be recognized as fundamental under the "emerging awareness" approach in Lawrence:
We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” See Glucksberg, 521 U.S. at 720-21 (citations omitted). For the time being, this issue remains in “the arena of public debate and legislative action.” Id. at 720; see also Gonzales v. Raich, 125 S. Ct. at 2215.
As stated above, Justice Anthony Kennedy told us that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S. at 579. For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.
Finally, the Court did not rule on our statutory interpretation claim because it had been raised too late in the procedings and was therefore waived.
The first two of these rulings by the Ninth Circuit were far more than an otherwise losing party had any right to expect.
Update: I will be discussing today's decision with Al Rantel tonight on KABC Talk Radio 780AM in Los Angeles at 9:05ET/6:05PT 11:05PM ET/8:05PM PT. You can listen on-line here.
"I Wish I Had Your Comments Before Writing":
In a recent e-mail sent to his Justice Jackson e-mail list, Professor John Barrett recounts an interesting exchange between Justice Jackson and his former co-worker Bernard Meltzer, by then a law professor at the University of Chicago. Meltzer, who recently passed away at the age of 92, had written an article criticizing Justice Jackson's opinion in Stein v. New York. Meltzer sent Justice Jackson a reprint, and Justice Jackson replied in a letter:
Dear Bernie, I have just read your comment on Stein v New York for
the writing of which it was my ill luck to be assigned. It seemed to
me one of those that can have no fully satisfactory answer. I wish I
had your comments before writing. But I think you have done a
very fair, instructive and constructive job on the case. Thanks for the reprint. With my best wishes
Sincerely
Robert Jackson
Pretty cool. Incidentally, I recommend Barrett's list to those interested in Justice Jackson. You can see a partial set of archives here, and you can sign up for free by e-mailing Professor Barrett at barrettj at stjohns.edu.
Hecklers' (Terrorists'?)Veto at University of Leeds?:
From Scholars for Peace in the Middle East:
On Wednesday morning March 14, just hours before an invited academic talk and two-day academic workshop series by SPME Board member, Matthias Kuentzel, German scholar, the University of Leeds cancelled this invited, university- sponsored, two-day workshop on "Hitler's Legacy: Islamic Antisemitism in the Middle East."
Dr Kuentzel's talk is part of a series of scholars' and artists' talks at the German Department. The series is supported by a grant form the School of Modern Languages, who did not raise any issues during the grant application process. The University cited security reasons for cancelling the workshop based on threatening emails it received to the Office of Vice Chancellor.
Dr. Kuentzel is a research assistant of one the world's leading institute in the research of antisemitism, the Vidal Sassoon International Center for the Study of Antisemitism (SICSA) at the Hebrew University of Jerusalem and a member of the board of directors of Scholars for Peace in the Middle East, an academic society with about 0ver 9000 faculty throughout the world. who is a Research Associate at the Vidal Sasson Institute on Anti-Semitism of the Hebrew University in Jerusalem. The series of events had been well publicised for several weeks.
Members of SPME and other academics of good will from around the world are being asked to immediately write to the Vice Chancellor’s Office at 0113-3434030 or e-mail m.j.p.arthur@adm.leeds.ac.uk to demand that this event be allowed to continue with appropriate security.
David Blankenhorn, a self-described liberal Democrat, comes out forcefully against recognizing same-sex marriage in a book being released today. Blankenhorn heads a think-tank called the Institute for American Values, and has written much on the effects of fatherlessness in families.
I haven't read the book yet, but Blankenhorn is as smart and articulate as they come in the ongoing national debate over gay marriage. His book should be well worth a look from anyone who follows the issue closely.
The Critical Legal Studies movement is heavily influenced by the deconstruction movement. Jack Balkin explains how deconstruction as a literary and philosophical tool migrated into the law, in his 2005 Cardozo Law Review article Deconstruction's Legal Career:
Deconstruction began as a series of techniques invented by Jacques Derrida, Paul de Man, and others to analyze literary and philosophical texts. These techniques, in turn, were connected to larger philosophical claims about the nature of language and meaning. . . .
When deconstruction moved from literature departments to the legal academy, it was modified further. Legal academics on the left, particularly feminists and members of the Critical Legal Studies (CLS) movement, saw deconstruction as a way of challenging legal orthodoxies. They assumed pretty much without question that they could adapt deconstructive techniques to critique unjust legal doctrines and advocate more just arrangements. Once again, this assumption is rather puzzling. It is true that many literary deconstructionists identified with the political left. But they were using deconstruction to show the impenetrability, mutability, and conceptual incoherence of all texts, not simply the texts produced by political conservatives.
So the indeterminacy of texts is a double-edged sword, which ultimately can be wielded by conservatives against cherished liberal principles. My friend and colleague Mike Seidman elaborates, in his excellent recent article Critical Constitutionalism Now (now published in the Fordham Law Review):
[The Critical Legal Studies movement's] indeterminacy claim was that standard legal materials -- statutes, constitutions, and precedent -- often failed to dictate a single outcome. Critical scholars demonstrated over and over again that legal rules and conventional methods of interpretation could, in the right hands, produce wildly different results. Some scholars went beyond this claim to assert that not just legal materials, but also underlying ideologies, were indeterminate . . . .
Events of the last six years provide a stunning confirmation of the claims critical constitutionalists made during the last century . . . . In a wide variety of contexts -- from the legal defense of an aggressive war, to the assertion of constitutional power to hold American citizens indefinitely without legal process, to the claim that the president has inherent constitutional power to utilize torture and warrantless wiretapping, to assertions that the filibuster is unconstitutional and that mid-decade gerrymandering of congressional districts is constitutionally permissible, to the unprecedented search of the office of an incumbent congressman -- the Bush administration and its allies have used legal rhetoric to hold and consolidate power. . . .
Although they can take small comfort from this fact, this complex interaction of legal consciousness with politics vindicates the key claims of critical constitutionalists. It turns out that constitutional principle is sufficiently elastic easily to accommodate the Bush revolution . . . .
And, of course, critics of this "Bush revolution" (rightly or wrongly) pile a lot of blame on one particular Executive Branch actor: John Yoo.
Perhaps this view (that the indeterminacy critique of constitutionalism can easily cut in a conservative direction), together with its associated warning (that progressives who, in the name of indeterminacy, try to undermine rule-of-law norms, will find this biting them back in the end), deserves a name. I suggest: the Yoo-De Man thesis.
French Court Ruling on Gay Marriage:
If you believe that foreign law shapes the meaning of the U.S. Constitution, then the chances that the U.S. Constitution guarantees a federal constitutional right to same-sex marriage just got a lot lower. (LvHB)
The Washington Post has a cool photo gallery of candidates for the New Seven Wonders of the World. Take a look at the pictures, but don't pay that much attention to the descriptions.
For instance, apparently the "ancient city" of Machu Picchu was "founded by Yale University professor Hiram Bingham in 1911." That's pretty ancient! [UPDATE: This has now been corrected to "found."]
More significantly, Istanbul's Hagia Sophia is "a church that was first built in 537 B.C. as a Mosque when the city fell to the Ottomans." How many mistakes are there in that one line?
It was once a church, and it was once a mosque (though it was a mosque only after it was a church, not before), but now it's just a museum.
Not much chance of its having been built as a mosque even in A.D. 537 (to say nothing of 537 B.C.), since Islam wouldn't even exist for about another century after that.
And the city didn't fall to the Ottomans until about 900 years after the construction of the church (and the Ottomans arguably didn't even really exist as "Ottomans" until around 1300).
Why Haven't We Written About the US Attorneys' Story?:
In an unrelated comment thread, anonymous commenter "CrazyTrain" writes:
I'd like to see a study on why the most read legal blog on the internet has not once mentioned the US Attorneys' scandal. This blog even includes ex AUSA's. Amazing. I used to think you guys were somewhat nonpartisan but now you guys just look like hacks. No one here is "obligated" to write about any topic of course, but the failure to write about a topic is fair game to judge one's views, and the fact that not one post here has been devoted to this very important issue in the legal community evidences the hackery of the writers here.
First, I would like to clear up something: Of course we are all political hacks! Our secret trick is that we alternate which side to spin: sometimes we are political hacks for the right, and sometimes we are political hacks for the left. Naive readers occassionally mistake this for principle, but I trust the more sophisticated see it as the randomized hackery it truly is. In any event, a great rule of thumb is that our silence means that we are secretly conspiring with your enemies to keep stories out of the public eye. Remember, if a legal event isn't being blogged about at the Volokh Conspiracy, it just didn't happen.
On a more serious note, I haven't written about the U.S. Attorney's story because I'm having a hard time figuring out just how big a deal it is. Parts of it are obviously very troubling: I was very disturbed to learn of the Domenici calls, for example. More broadly, I have longrunning objections to the extent to which DOJ is under White House control, objections that this story helps bring to the fore (although my objections are based on my views of sound policy, not on law).
At the same time, several parts of the story seem overblown. U.S. Attorneys are political appointees who serve at the pleasure of the President, and the press seems to overlook that in a lot of its reporting. Also, I know one or two of the Administration figures named in some of the stories, and based on my knowledge of them and their character (although no secret details of the story — I have not spoken with anyone about it) I have a feeling that they're getting a bad rap.
So in the end I don't quite know where I come out based on what we know. Without knowing where I come out, I don't feel I have much helpful to add. I realize that this may mean I am missing a big story. Perhaps this will prove to be a simply huge scandal, and in time it will seem odd that we weren't all blogging about it. But I don't know what I'm supposed to do when I read a story and I'm not sure what to make of it.
In any event, readers such as CrazyTrain who are sure are about this story are welcome to explain why (politely, of course) in the comment thread.
Presentation on "Federalism and Political Ignorance" at UC Santa Cruz:
This Friday, March 16, I will be speaking on "Federalism, Political Ignorance, and Voting With Your Feet" at a conference on Federalism and Decentralization organized by the UC Santa Cruz Economics Department. My presentation will run from 2:30 PM to 3:30 in Building E-2, Room 499 on the Santa Cruz campus. Perhaps of greater interest will be the very next presentation (at 4 PM), by Stanford's Barry Weingast - one of the most influential federalism scholars in the world today. Prof. Weingast will be speaking on "Second Generation Models of Federalism," and I'm willing to bet that his talk will be more than worth the price of admission. My talk is his undercard or opening band, so to speak.
When I was an undergraduate, UC Santa Cruz had the reputation of being the country's biggest party school. Perhaps I'll be able to find out if UCSC lives up to its reputation during my stay there:).
UPDATE: Several commenters suggest that I may have confused UCSC's reputation as a party school with that of UC Santa Barbara. That is quite possible, though I distinctly remember hearing California friends talk about UCSC as a major party school back when I was in college. However, if I have indeed mischaracterized UCSC, I apologize. Of course, it's not clear whether the misrepresentation hurts UCSC's rep more than it helps it or vice versa. A reputation as a party school may attract at least as many students as it repels.
UPDATE #2: In answer to a commenter's question: No there is no real price of admission. You can come hear the presentations at the conference for free, though voluntary donations to support the needy law professors and social scientists are more than welcome:).