August 25, 2003
So this post by Eugene Volokh might look like it's going to be some sort of point about tolerating Hindus, but it turns out to be a brilliant defense of . . . you'll see.
TrackBack URL for this entry:
The New York Times carries a story on direct-wine-shipments, and can't resist paraphrasing the quotable Frank Easterbrook. For what it's worth, my first-year paper on direct shipment laws is available here, and Easterbrook's 2001 decision is available here.
[Full disclosure: My father was involved in arguing this case in the 7th Circuit, and what I recall to be his concsession at oral argument that lots of people violated the lesser laws in place before the statute at issue probably prompted Easterbrook's observation:
What is puzzling is that Indiana appears unwilling to enforce its purchaser-side laws even against consumers who proclaim and revel in their violations, as our plaintiffs do.]
TrackBack URL for this entry:
And within a few hours, Randy Barnett's 20 questions has become quite popular. Given Professor Barnett's wonderful answers, this is no surprise. Thanks to Matthew Yglesias, Jeff Coop, and Micha Ghertner for their links, and of course Randy Barnett for his link and all the time he spent answering. Soon I intend to format all of our past 20-Questions into some sort of useful archive format, though I haven't quite figured out what yet.
TrackBack URL for this entry:
Leadership and integrity are nebulous concepts, but there is a solid reason to think that Arnold Swartzenegger and Arianna Huffington are particularly qualified to enact the sort of career-killing spending cuts and tax increases that are necessary to put California's budget in the black. Because both are naturalized rather than natural-born US citizens, they are disqualified from the presidency. Short of a constitutional amendment, governer of the most populous state in the Union is the highest elected office to which they can aspire.
TrackBack URL for this entry:
Reports from France suggest that between five and ten thousand people, mostly elderly, died in August's heat wave. What struck me most, however, in this NY Times account was the following paragraph:
Pascal Champvert, the president of an organization representing homes for the aged, said, "One has the impression that only now France is discovering its elderly." He refused to blame families, saying in an interview with Le Monde that French society was responsible. "The government presents the problem as if the solution were private," he said, but the response had to be "collective, by means of taxes and contributions."
For me, this response encapsulates everything that's wrong with the attitude encouraged by government-mandated charity. One forks over a portion of one's paycheck every month, and in return one is absolved of any sense of personal responsibility for the well-being of one's fellow citizens, neighbors, and even family members. This fuels the social isolation of marginal groups such as the elderly, which leaves them more vulnerable to disasters such as heat waves, and in turn requires even more layers of government involvement. Not only is this a social tragedy, it's grossly inefficient. The bald truth of the matter is that the government does not care about your dead grandmother. To a bureaucracy, she is a statistic, not a person. Give a bureaucracy a mandate to prevent heat deaths among the elderly, and it will enact programs aimed at her demographic, but it will still have no incentive to help her, personally. This is not to say that there aren't things that the government could do, such as building neighborhood cooling centers, or that it shouldn't perhaps do some of them, but that there is simply no way that government care can replace family care.
The French government could respond to this crisis by developing a program whereby they track all individuals over 75, and send a social worker to visit them twice a day whenever the temperature reaches a certain level. This would probably be quite expensive, and perhaps moderately effective. Or, young Parisians could take a few minutes out of their impossibly chic lives to knock on the door of of their elderly neighbor upstairs, and make sure she has a fan and plenty of cold bevarages. This would be quite cheap, and probably just as effective. Nevertheless, I suspect that the French response will end up looking much more like the former program than the latter, as French citizens become ever more detached from the charitible impulse.
TrackBack URL for this entry:
The Sacramento Bee's Dan Weintraub is a very strange person. He believes that right-wing politicians like Simon and McClintock are selling snake oil when they tell voters they will balance California's budget without cutting programs or raising taxes by eliminating waste and sticking it to the bureaucrats...admits he has absolutely no clue what Arnold Schwarzenegger would do as governor...and he believes that Cruz Bustamante has a program that at least holds together...A normal person, if offered a choice between candidates (McClintock, Simon) who are lying to you, a candidate (Schwarzenegger) who refuses to say what he would do both because he has no clue and because he thinks "people do not care about the numbers and figures," and a reasonably-smart guy who understands what the tradeoffs are and has a set of ideas about what to do with them--as I said, a normal guy would choose the clued-in candidate who is not lying to him. But, as I said, Dan Weintraub is strange. The clued-in candidate who is not telling lies is to be avoided at all costs.
Put like this, Weintraub certainly does sound strange. But the obvious point that DeLong and Healy seem to be wilfully ignoring is that not all possible solutions to a problem are good solutions to a problem. For instance, I currently have a problem with the neighbor's cats using my backyard as their litterbox. If I were to poison the cats, this would undoubtedly put an end to the smelly messes that appear in my yard with distressing regularity. Nevertheless, because I do not wish to sour the current cordial relationship with the neighbors, and because I do not believe I have the right to kill other people's pets, I'm not going to put out the arsenic-laced Meow Mix. If I were instead to hire someone who claimed to be able to keep cats out of my yard without hurting them, even if he had not told me how he planned to do so, or why he thought his solution would be effective, most people would believe I had acted logically in choosing a solution of unknown efficacy over a solution of known efficacy and known unwisdom.
Reading Weintraub's full assessment of Bustamante's plan shows that while Weintraub is not entirely convinced Bustamante's tax increases for businesses and rich people, combined with unspecified spending cuts and savings on Medi-Cal are sufficient to balance the budget, he is convinced that this is the wrong direction for the state to be moving. He writes:
But his planís details didnít really call for togetherness so much as class warfare wrapped in a cloak of shared sacrifice. He wants to raise taxes on the wealthy, on business owners, on employers, while rolling back community college fees and car taxes on the owners of low-priced and modest vehicles.
One may or may not agree with Wientraub's assessment, but calling him "very strange" for favoring a candidate with unarticulated but vaguely positive ideas over one with articulated, coherent, bad ideas is gratuitous name-calling.
TrackBack URL for this entry:
To continue our weekly feature-- 20 Questions for the Blogosphere, I'm honored to present Professor Randy Barnett, Austin B. Fletcher Professor of Law at Boston University, and co-blogger at the Volokh Conspiracy:
1: Why did you start blogging?
I had not been reading blogs until I noticed all the fun my good friend Larry Solum was having on his Legal Theory Blog. I resolved that I could never undertake the time commitment involved in doing one on my own, but when Eugene invited me to join his Conspiracy, which is a group blog, I thought I would give it a try. I am glad I did.
2: You have been subjected to some criticism as a blogger (though I don't agree with it myself; I'm thinking of the stuff on Matthew Yglesias's blog), that suggested that your considerable scholarly skill has not translated perfectly into blogging. What difficulties have you had in making the transition to blogging, and how is blogging different from what you've done before?
The only serious criticisms I have received came as a result of a pretty contentious blog I did on GlennReynolds.com. From the reaction, I learned the price of being political, including increased sensitivity to what I write that is more innocuous. But if you cannot stand the heat, you need to get out of the blogosphere. I know I learned from the exchange of ideas, as well as from the feedback on style. It reminded me of student evaluations, only immediate.
3: Following up on that, what role do you see blogging playing in your future academic life?
More overwhelming has been the personal interaction I now see you can have with readers. I modified that controversial column the next day in response to thoughtful criticism I found persuasive. That does not happen, or happen overnight, in normal scholarly exchanges. Being an academic writer is very lonely. You write and publish and write and publish, and only rarely get any feedback. Even when you know people are reading you, you rarely hear about it directly. You act almost entirely on faith.
Blogging has changed that. The feedback, whether positive or negative, tells me someone is listening. Entering the blogosphere has also made my scholarship known and available to a much broader audience than just other professors. I now get emails not only from lawyers, law students and law professors, but also from people in all walks of life. I feel much more connected to readers than ever before and it is really quite gratifying. I will continue to blog as time permits, and figure my postings will go in waves. That is the huge advantage of being a part of a well-read group blog like the Volokh Conspiracy.
I also really enjoy promoting the writings of others that I find provocative, entertaining, and informative. Blogging makes this possible.
4: It seems as though your approach to Constitutional Interpretation is basically an originalist one, but one that urges that "traditional" originalists have missed part of the picture. You think that the Ninth Amendment's guarantee of unenumerated rights should not be ignored but balanced into Constitutional decisionmaking as a "presumption of liberty". Is that a fair characterization of your approach?
That's pretty fair all right. The Ninth Amendment is part of the text and its original meaning, though abstract, is demonstrable: it mandates the equal protection of individual rights or liberties. The Privileges or Immunities Clause is also part of the text and it protects these same liberties from state infringement along with additional individual rights in the Bill of Rights. The "Presumption of Liberty" is simply a doctrine by which to put these mandates into practice.
For most of my career I was not an originalist because I found the myriad criticisms of original intent originalism to be persuasive. I still do. I just found another version of originalism--original meaning originalism--that made more sense to me practically and, especially, normatively. I offered my first defense of this in 1999 in an article called "An Originalism for Nonoriginalists," and will greatly expand this in my new book, Restoring the Lost Constitution: The Presumption of Liberty (Princeton, forthcoming February 2004).
I was led to this theory of interpretation when teaching a seminar in which one of the writers we were reading cited Lysander Spooner's The Unconstitutionality of Slavery. I then assigned it to my students and saw Spooner practicing a different form of originalism than his protagonist, Wendell Phillips who was employing an original intent originalism. (I wrote about this in "Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner's Theory of Interpretation.")
5: Could you give an example or two to illustrate how your theory of jurisprudence would work in practice?
Sure. In the medical cannabis cases which I am now litigating in the Ninth Circuit (U.S. v. OCBC & Raich v. Ashcroft) the government would have to show the necessity and propriety of its interference with the state sanctioned liberty of Californians to use medical cannabis pursuant to state law. Under current doctrine, unless we can show that the liberty is a "fundamental right" that is deeply rooted in the nation's tradition and history, the government gets the benefit of an irrebuttable presumption of constitutionality.
Another example is how Justice Kennedy treated the issue of antisodomy statutes in Lawrence v. Texas. After finding that they restricted liberty (which was rightful insofar as it did not harm others), the burden fell to the state to justify its prohibition which it failed adequately to do. In its opinion, the Court shifted the burden of justification to the state without finding the liberty in question to be "fundamental" or deeply rooted in our history and tradition. This is why I entitled my analysis of the case for the Cato Supreme Court Review, "Justice Kennedy's Libertarian Revolution."
6: Very few people hold both Libertarian and Originalist theories of Constitutional Interpretation, but it looks as though you try to bridge that gap. Do those two views ever come into tension with one another?
It took me a while to resolve this tension. I realized that you must separate how a written constitution should be interpreted from the merits of what it says. A writing is an important structural feature used to subject lawmakers and enforcers to the law themselves. This it would fail to do if it could be changed by them. So the meaning must remain the same until properly changed.
But if that meaning is not good enough to provide for a legitimate legal system that produces laws that bind in conscience, then we may wish to disregard the writing altogether. (I explain this concept of legitimacy in my Columbia Law Review article, "Constititional Legitimacy.") I think other theorists want to have the Constitution and eat it too. In other words, they want to substitute for what the Constitution says something they like better, but still claim that it is The Constitution they are expounding. I think this is a deception on the public.
7: In general, it seems as though the results of your theories would lead to a major overhaul of existing government if they were widely held by the judiciary-- much of the administrative state and federal agencies might fall by the wayside. If Libertarian Originalism were to become popular, how should we make the transition from our current government to that one?
That will happen without any advice from me. Nothing changes overnight in the legal system. All legal change is gradual, nonlinear and at the margin. I am grateful for this because, if everything could be changed quickly, it would have previously been changed by those before me, and we would already have lost the whole Constitution rather than just some of its most important parts.
On the other hand, marginal change in a particular direction is more likely to occur if people believe that more radical change in that same direction is feasible and desirable. That is why it is worthwhile for academics to debate the merits of more radical positions, as I do. At minimum, such analysis cuts short objections that begin, "Well if we take your proposal seriously it will lead to X." My work stands for the proposition that X--meaning a libertarian legal system--is good place to
be. That is one of the principal reasons why the last third of "The Structure of Liberty: Justice and the Rule of Law," (Oxford 1998) describing a polycentric legal order was written. Not because I think it will happen in my lifetime, but because knowing it is practical and desirable makes movement towards liberty more easily achieved at the margin.
8: You spent several years as a Cook County Prosecutor before entering academia, first at the University of Chicago Law School and then elsewhere. How did you come to make the switch? Had teaching always been in your long-term plans?
I wanted to be a criminal lawyer starting at the age of 10 when the TV show The Defenders came on. (read more about The Defenders here) It just blew me away and I immediately resolved to be a criminal trial lawyer. In law school I decided to be a prosecutor, but if I had not gotten the job with the Cook County State's Attorney's Office, I would have been happy in the Cook County Public Defender's Office. In college, I flirted with the idea of getting a PhD in philosophy but decided to stick to my original plan. Half-way through law school the thought occurred to me that I might want to be a law professor. I am glad I stayed with my original plan because trying murders, rapes, and robberies, and working with the police, really was a thrilling and fascinating experience. Sometimes I miss it, but being a law professor is an amazingly rewarding and enjoyable way to spend one's professional life. I think of it as moving from "retail" or case-by-case justice to "wholesale" or systemic justice.
9: Do you have advice for those in law school who hope to pursue a career in the legal academy rather than practice law?
Well, I think all law professors should practice law for a bit, and this is overwhelmingly the norm. But if students think they may want to teach I would advise to them to do as well in school as the possibly can--and frankly, to attend the most prestigious school they can get into, even if this means transferring after the first year. On the other hand, if you want to practice, the status of your law school matters much much less.
A graduate degree in another field is a plus no matter where you go to school, but can also compensate somewhat for a law degree from a less prestigious school. And law teaching jobs candidates are expected to have written and, preferably, published something before going on the market.
Finally, candidates need strong recommendations. So first year law students should talk in class and get to know their professors during office hours. If they just hang back and let other students do the work, it will be very hard for their professors to go to bat for them even if they do well on the exam. Being a research assistant for a professor with high academic standing is an excellent way to spend the summer between first and second years and to build a relationship with a mentor and reference.
10: What originally drove you to study law?
An overriding concern for justice. When I saw The Defenders, I decided this was for me. Justice remains the touchstone of my professional life.
11: You co-wrote the Institute for Justice's amicus brief in the case of Lawrence v. Texas last term. Given that the Supreme Court is generally far from embracing your liberty-centered theory of jurisprudence, what is your goal when submitting an amicus brief?
The actual decision in Lawrence came very close to the IJ brief and the amicus brief of the Cato Institute (which Justice Kennedy cites twice). Our goal was to provide the Court with a theory that other parties might have overlooked. In our brief, this was a discussion of the limits of the police power of the states (which the Court generally ignored) and why the statute failed even rational basis scrutiny (the approach the Court ultimately employed). Frankly this is a new experience for me. Until my involvement in the U.S. v. OCBC and Raich v. Ashcroft medical cannabis cases, I kept myself completely in academia. But my pro bono involvement in this litigation has taught me a lot. Next month, I will be arguing the OCBC case before the Ninth Circuit which will be a real thrill.
12: Some of my readers have suggested that the online community has little to add to legal scholarship other than recounting "current events in the law." Does the blogosphere bring something useful to legal scholarship, and if so, what?
I am not sure, but immediate feedback to trial balloons is always valuable. And Larry Solum's Legal Theory Blog is indispensable to keeping up with what is going on in legal scholarship. I have learned a lot from reading other law blogs, such Howard Bashman's How Appealing. Relatedly, I also enjoy Crooked Timber which I find to be very intelligent. If I had more time to read blogs, I probably would learn even more.
I cannot claim to be a regular reader, but have enjoyed sampling my friend Jack Balkin's Balkanization, Eric Muller's Is that Legal, The Curmudgeonly Clerk, and Eve Tushnet. The enumeration in this list of certain blogs shall not be construed to deny or disparage others maintained by very interesting people.
13: Roe v. Wade is now a cornerstone of many judicial confirmation hearings. What do you think will be the fate of Roe and abortion jurisprudence in the next fifty years?
Roe was undermined by the Court immediately after it was decided, as states tried to fit within the trimester scheme and were repeatedly rebuffed by the Court in later cases. This was a shame. Planned Parenthood v. Casey ignored the trimester scheme and replaced Roe's reliance on the right of privacy with a reliance on liberty (presaging Lawrence v. Texas). So, for better or worse, Roe is not really with us any more.
As for the right to chose abortion protected by Casey, I think its is pretty secure, but I do not consider myself a good prognosticator of the Supreme Court. The point I make in my article on Lawrence is that the "right to choose" abortion would be on far sounder ground if based on "liberty" (which is in the text) as Justice Kennedy attempted to do in Casey than on "privacy" (which is not). In addition, protecting a more general right to liberty would cut across ideological lines and find supporters on both sides of the left-right divide. It might even hold out hope that judicial nominations could become less contentious than now, when each side is pleading for the liberties of which they approve while denying protection to the liberties valued by the other side.
14: If the Supreme Court recognizes an individual right to keep and bear arms, what limitations should it impose on that right?
It should impose none. But the right to keep and bear arms is no more absolute than the rights of speech, press, or assembly. None of these rights prevent the prohibition of wrongful conduct, nor the reasonable regulation of rightful conduct--provided such regulations are subjected to meaningful judicial scrutiny. So while courts should themselves impose no limits they should uphold laws punishing the use of guns to violate the rights of others as well as genuinely necessary and proper regulations of rightful conduct.
What gun laws would pass such meaningful scrutiny depends a lot on the particular restriction and whether it is truly necessary, or a mere pretext for prohibition. This is a highly fact dependent question. One example that comes to mind is preventing the use of high powered hunting rifles in self defense in densely populated areas. With enough power to bring down a bear or a moose, their bullets are likely to go through the target, and through several walls and potentially an innocent bystander. The much-reviled handgun is a considerably safer alternative for personal self defense in confined areas. Unfortunately, most proposed gun control laws are not seriously meant to address the problem of preventing harm to innocents, but are mere pretexts for raising the hassle of gun ownership as a means of denying rather than regulating the right. As with speech and assembly, that is improper and unconstitutional.
15: I notice that your homepage and your emails have a link to information on Lysander Spooner. What's so special about Lysander Spooner?
Lysander Spooner inspired me as an undergraduate, and as I said above, influenced my thinking about constitutional interpretation. He was a brilliant, fiery radical libertarian whose overriding preoccupation was with justice and who would never stop pursuing his principles. I do not always agree with him, but I am always stimulated by him. It was my privilege to help raise from generous donors the money it took to erect a monument on his grave in Forest Hills Cemetery (click on "photos") in Boston. Working on www.LysanderSpooner.org has been a labor of love for me, and I am grateful to the many student research assistants who have done the heavy lifting over the years.
I am dedicating Restoring the Lost Constitution to Spooner and to James Madison--an odd couple if there ever was one.
16: What role should the doctrine of stare decisis play in judicial Constitutional decision-making? For example, you have shown that the original understanding of the word "commerce" in the commerce clause was almost definitely much narrower than the Supreme Court's current interpretation, even after United States v. Lopez. In what circumstances should the Court feel empowered to revisit the commerce clause?
I think the original meaning Constitution should always trump Supreme Court opinions. Here I part company from my friend Larry Solum's defense of stare decisis
here, here, and here. But very few Supreme Court opinions are foundational in this way. Most involve complex statutory interpretation. In addition the Constitution is often pretty abstract and requires the development of rules to put it into practice. There is something to be said for sticking to those rules once announced--provided they do not violate the Constitution--even when some tinkering might be an improvement. Finally, outside the constitutional sphere, I think stare decisis has much larger role to play in common law adjudication.
17: Those who do not yet possess full rationality are always a difficult case for a Libertarian political theory. In a society that properly respects liberty, how much should the rights of juveniles be circumscribed?
I do not think libertarianism turns at all on full rationality. To the contrary, libertarianism rests on much more realistic assumptions about human rationality and goodness than does statism in all its guises. Statists must assume that political leaders are not only rational and knowledgeable enough to improve upon the spontaneous order that results from respecting properly formulated rights, but that they will be virtuous enough not to abuse the monopoly power reposed in them. I think both are highly questionable assumptions on which we should never rely (even if they are sometimes true).
As for "juveniles," like Hillary Rodham Clinton in her writings on children's rights, I distinguish between children, who require adult supervision and care until they are able to emancipate themselves, from adolescents who in previous eras were working, fighting for their country, and raising families. If they want to emancipate themselves, I would let them. (BTW, I included an excerpt from her article in my contracts casebook in the section on the defense of "infancy.")
18: Do you read fiction, and if so what sort of fiction do you read?
I do not have much time for fiction. What leisure reading I can squeeze in is more likely to be history such as Ellis's, Founding Brothers, or Hanson's Carnage and Culture. I used to really like spy novels like those by Len Deighton (author of "Spy Game," "Spy Set" and "Spy Match"). I still enjoy an intelligent thriller like To Die in Provence by Norman Bogner, but this may be because it is set in one of my favorite towns, Aix-en-Provence. And I do love films of all sorts.
I am a bit embarrassed to admit that I recently reread all the original Ian Fleming' James Bond novels I had read first as a kid. I had saved a few and since then bought copies of the rest for my son to entice him to read more. Then I began myself by rereading You Only Live Twice while traveling in Japan. After that, I started from the beginning and read them in sequence. Although I had been warned by friends that I would be disappointed, I thought they held up very well--especially when read in order. I was able to spot that Die Another Day was based on the original story for Moonraker,, one of the very earliest Bond novels. When I reread it, it seemed the most archaic and least susceptible to being translated into a film today. Yet this was one of the best Bond films in recent years. While I am on the subject, I loved Sean Connery as Bond, and really disliked Roger Moore along with Timothy Dalton. (George Lazenby was better than both.) Pierce Brosnan is really superb as Bond, which I do not think he would have been if he had been able to accept the role when it was first offered to him and he was tied up contractually with Remington Steele. Then he was too young and foppish for the part. Now he is just about as perfect as anyone who is not a younger Sean Connery can ever be. Do you suppose I will be flamed for all this?
19: What do you do for fun?
I enjoy movies, theater, concerts, and good television (of which there is more and more these days if you are discriminating) thanks to my beloved TIVO. Broadway in Boston has really made it easy to see all the shows that come through town, and we have season tickets to the BSO and Boston Pops. I also enjoy watching the Chicago Bears on satellite (and used to enjoy the Bulls).
My son and I make an annual sports week-end pilgrimage to my home town of Chicago to watch the Bears, Bulls, and the Northwestern Wildcats. Perhaps because my professional life provides so much room for self expression, I prefer passive entertainment in which I can lose myself. I also travel a lot and enjoy seeing the world, as well as the well-timed beach vacation.
20: My research has been able to uncover very little information about Austin B. Fletcher. Do you have any idea who he was and why he endowed a chair of law at Boston University (which you now possess)?
Austin B. Fletcher, 1879-1923, was president of the Board of Trustees of Tufts College and a trustee of Boston University. After graduating from Boston University Law School in 1879, he became a well-known lawyer. He also served as professor of oratory at Boston and Brown Universities. The chair in his honor was funded by a bequest from his estate and the trustees voted that it be held by a teacher of the law of contracts. Contracts was my first area of scholarship after becoming a professor--I have a casebook called Contracts Cases and Doctrine (3d ed. 2003 published by Aspen as well as a reader, Perspectives on Contract Law (2d ed 2001)--and I still love teaching the subject. As a contracts professor, I was honored to receive the title--as I was by being chosen to be interviewed for your blog. This is a wonderful idea and I look forward to reading your interviews with other bloggers.
TrackBack URL for this entry: