June 10, 2003
Finally: Surely this will put
Finally:
Surely this will put an end to all the bickering in the Middle East. It's about time we had some good news from over there.
TrackBack URL for this entry:
Acceptable (to me) involvement of
Acceptable (to me) involvement of religion in government:
The NYT has this op-ed on Alabama Governor Riley's effort to raise the state's taxes: What Would Jesus Do? Sock It to Alabama's Corporate Landowners. This isn't a 'chicken in every pot and a car in every garage' plan:
Alabama's tax system has long been brutally weighted against the least fortunate. The state income tax kicks in for families that earn as little a $4,600, when even Mississippi starts at over $19,000. Alabama also relies heavily on its sales tax, which runs as high as 11 percent and applies even to groceries and infant formula. The upshot is wildly regressive: Alabamians with incomes under $13,000 pay 10.9 percent of their incomes in state and local taxes, while those who make over $229,000 pay just 4.1 percent.
His rhetoric, however, is religious, as he attempt to sway voters when this issue comes before them in September.
Governor Riley has stunned many of his conservative supporters. . . by pushing a tax reform plan through the Alabama Legislature that shifts a significant amount of the state's tax burden from the poor to wealthy individuals and corporations. And he has framed the issue in starkly moral terms, arguing that the current Alabama tax system violates biblical teachings because Christians are prohibited from oppressing the poor.
I'm used to complaining that the government shouldn't (even though it can) legislate on the basis of morality when convervatives three states west in Texas proscribe homosexual sodomy. This governor is known for his Bible-quoting; some of those state representatives probably are, too. It's just that when this guy comes out with statements like "I've spent a lot of time studying the New Testament, and it has three philosophies: love God, love each other, and take care of the least among you. I don't think anyone can justify putting an income tax on someone who makes $4,600 a year," I don't disagree. (I don't know what the current Alabama law on this matter is, but -- a hypo) I wouldn't be pleased if in September, the Alabama voters also attempted to pass an anti-sodomy statute like Texas's. So where does the principled distinction lie? I'm not a libertarian; I'm not about to go stand guard with my shotgun at the bedroom door. The government can continue to ban some items (incest, bestiality) within its parade of horribles without a tear from me.
TrackBack URL for this entry:
Predilections: The Curmudgeonly Clerk (newly
Predilections:
The Curmudgeonly Clerk (newly blogrolled) and Matthew Yglesias both chide Libertarian constitutiional theorists for the "remarkable coincidence" that their unorthodox policy preferences (we sometimes say "political views") correspond with their unorthodox legal views.
The Clerk writes:
However, it seems to me that it is more than a mere coincidence that there is a substantial union between those who oppose the drug war as a matter of policy and those who believe that the drug war is unconstitutional. We human beings are particularly susceptible to thinking that our policy preferences are constitutionally mandated.
and Yglesias writes:
Randy Barnett says liberals and conservatives alike are wrong about constitutional interpretation, with each seeking to advance their own policy preferences while ignoring the true meaning of the constitution. The true meaning, according to Barnett, is that the constitution supports libertarian policy outcomes. Strangely enough, Barnett also supports libertarian policy outcomes. Quite the coincidence!
This is a shot people often level against constitutional interpretation. Those who think abortion is morally wrong are less likely to think it is a "fundamental right" than those who think it is morally permissible, and those who favor certain expansive federal regulations are more likely to take a broad view of the commerce clause. Of course, few people ever try to win an argument on this sort of ad hominem attack, but it's often a punch thrown into the mix. (And of course those who seriously level this charge sometimes have to ignore a number of anomalies-- Scalia's votes to protect flag-burning or invalidate the use of heat-scanners, for example.)
But I think this type of criticism misses the mark. The implication is that your constitutional view probably isn't "objective" or is influenced by personal predilections rather than abstract principle. As Richard Posner writes, "Supreme Court Justices have and exercise broad discretion, however much they deny it and pretend to be following the dictates of antecedently established principles traceable back to the constitutional text. That is why ideology rather than competence is the focus of confirmation hearings for nominees to the Supreme Court." But this isn't necessarily so.
No, it's no coincidence that libertarians often favor libertarian constitutional interpretation, or liberals find a right to abortion in the constitution. But this isn't because libertarians, liberals, and conservatives are all conspiring to mis-interpret the constitution to their own advantage (although some are, I don't doubt). Nor is it simply because of some inner subconscious tendency to find exactly what one is hoping for (though again, that could play a role). The thing to consider is that whether you like what you find in the constitution influences your desire to become a serious student of the law, law professor, legal philosopher, etc.
Imagine that libertarians, liberals, and conservatives are equally likely to be neo-originalists (like Professor Barnett), originalists (like Justice Scalia), or interpretivists (like Justice Breyer). The originalist liberals are likely to find something better to do with their time, rather than spend their lives fighting against the things they believe in, even if they think the constitution requires it. Similarly, while some interpretivist conservatives exist (The Chief Justice is one), a number of them will compare unfavorably to originalists, who reach the same political conclusions through a more self-consistent judicial philosophy. And so on. Some rare people will be so intrigued by legal puzzles and the rest that they will be drawn to study the subject even if their theory of interpretation conflicts with their policy preferences (as mine does), but on the whole, people only study constitutional law seriously if they respect and approve of the values that they think the constitution upholds.
So I don't think it's helpful to chide an opponent because his gemeral view of the constitution happens to coincide with his general view of the world (though this can be a very apt critcism about individual cases). One should focus on figuring out what's wrong with that view of the constitution.
TrackBack URL for this entry:
Nguyen Phuong: So as How
Nguyen Phuong:
So as How Appealing notes, The Supreme Court issued some opinions today, including one in Nguyen v. United States. Now, you know something is afoot when Justice Stevens is writing the majority opinion for himself, Justice O'Connor, Justice Kennedy, Justice Souter, and Justice Thomas while Chief Justice Rhenquist is dissenting for himself, Justice Scalia, Justice Breyer and Justice Ginsburg. The actual legal argument isn't that interesting to me-- it turns a lot on what the court's authority is to review clear error and whether the right to a properly constituted court is waivable. But the facts of the case, and now the lineup of the Justices, is absolutely fascinating.
I'm further fascinated by the case because it was the very first Supreme Court case I ever saw argued (my virgin report is here). As you can see from my report, I mis-read some of the Justices, unfairly (and unwisely) assuming Thomas would agree with Scalia and Rehnquist on the "clear error," matter, and not forseeing that Ginsburg and Breyer would. In retrospect, Breyer's dissent should have been forseeable in light of his questioning and concerns, but I didn't think of it at the time.
In any case, for those of you unfamiliar with the case (and there's no reason it would ever have mattered in your life) the problem is that Nguyen bought some drugs and was caught and convicted by a trial cour tin Guam, and then appealled (under a statute) to the Ninth Circuit Court of Appeals which sent two Ninth Circuit Judges and a Guam Trial Judge to hear her appeal. (The perennially overtaxed Ninth Circuit often composes panels by taking two Circuit Judges and a Trial Judge). The trouble is that Trial Judges in Guam don't have life tenure and aren't appointed under Article III in the Constitution, and therefore can't sit on the Article III court that Nguyen had a right to. The government concedes all this. The only question before the court was what to do about it. The majority vacated the decision and remanded it to a properly constituted panel.
TrackBack URL for this entry:
Strom Thurmond dies: No, not
Strom Thurmond dies:
No, not really. But The South Carolina State is ready for the day. The Smoking Gun has the pictures.
TrackBack URL for this entry:
And then there were .
And then there were . . . :
So the Volokh Conspiracy is up to fourteen bloggers now. Now, I'm not objecting or anything, since all of the recent choices seem like great choices and I love reading what they write, but I'm just sort of curious when (and whether) it's all going to end. How long until Howard Bashman or Glenn Reynolds join?
TrackBack URL for this entry: