Via Stuart Buck, I see these thoughts from Mark Kleiman on the estate tax. Among other things, he writes: "The repeal of the estate tax, unless it's replaced by an inheritance tax, is a profoundly anti-democratic and anti-meritocratic move, taking us one step closer to reproducing the regime of inherited status against which the generation of 1776 fought and won a revolution. Being wealthy and important because of your ancestors is European; making it on your own is American."

I resume my cry that post-death gifts ought to be treated just the same as pre-death gifts, although I am perfectly willing to consider arguments about what that treatment should be. To be sure, there is something weird about taxing people for income they earned but not taxing them for the same income so long as they didn't earn it. Then again, there is something weird about taxing income the way we do, too, since it is supposedly a value-for-value exchange.

At any rate, I digress. One curious thing about Kleiman's post is its reliance on the social fact that most people who donate money post-death donate it to their families. Much of the instinctual objection people seem to have to inheriting large sums of money becomes more complicated outside of the family context-- when a wealthy man dies and leaves 750 million dollars to Harvard, does it make sense to say that they did not earn it and suppose that they may be corrupted by it? Or if a wealthy millionaire leaves his fortune to a young protege he has befriended, does the "Paris Hilton" objection adhere? Maybe, maybe not, depending on one's view of what it means to "earn" affection, loyalty, &c.

But if passing down accrued wealth from family to family is unAmerican, why not limit the Kleimanian estate tax only to intra-family giving?

I attended a teach-in about the current state of judicial nominations today [Jack Balkin on the Constitution in Exile: "I don't believe it for a second."] and came away with, inter alia, a map of the geographic boundaries of not only the Circuit courts but also the District courts (sort of like this only easier to read and less garish). It's something of a surprise to me. New Jersey, the ninth most populous state, is a single federal district. Oklahoma, the twenty-seventh, has three. West Virginia, the thirty-seventh, has two. To be sure population and federal caseload are but rough correlates (witness, e.g., the District of Columbia) but still. Three districts in Oklahoma? Three in Alabama?

Is the mismatch because some local features turn up a surprising amount of federal case law, or because districts are created as prizes for local senators, who presumably get to fill the spots with their chosen folks? Presumably both.

(It appears that that district of New Jersey gets 7000 filings a year while the E. District of Oklahoma gets about 900. Forget this talk about splitting the Ninth Circuit. Split New Jersey!)

Relatedly, Professor Resnik mentioned the possibility of rolling the tapes and listening to the confirmation hearing of Justice Thomas; I tried with little success to find such a thing online when I spent a summer obsessively rereading the Thomas hearings. Does it exist? Is there a nice set of MP3s I can download someplace?

Jeff Rosen has a much-discussed piece in the New York Times today describing the so-called "Constitution in Exile" movement, which appears to be some sort of program of rehabilitating the judicial enforcement of economic constitutional rights.

The smartest responses are these two from David Bernstein, but I will try to add a few more observations:

Because Rosen is so fair in his tone, it is difficult to tell if the piece is actually intended to sound alarm bells about a possible surge of libertarian judicial activism or just to observe that there's a huge difference between Epstein and Easterbrook. But to the extent that his post does sound an alarm (which I think is a fair guess from reading his other scholarly and non-scholarly work) it conflates two very different, and very incompatible, objections to what I call the Epstein Program.

Objection 1 is something like, "This program would harken back to the jurisprudence of the Lochner days, and most modern scholars agree that jurisprudence was wrong." Objection 2 is something like, "This program would invalidate many popular and well-accepted pieces of legislation, and is therefore scary." Rosen never says either of these explicitly, and he may not even mean to imply both, but they are the two messages I glean from the article.

These are incompatible because the scholarly objections to the Lochner days rarely come in the form "Lochnerism is now unpopular, and therefore wrong," and similarly because most people support the Endangered Species Act or whatever not because they have any particular view of the scope of Congress's ability to regulate interstate commerce but because they think that protecting endangered species is good and think the ESA does that. Most constitutional scholars object to some popular and well-entrenched laws, whether military exclusion of women and gays, the Endangered Species Act, some restrictions on obscenity, &c. This leaves popular-constitutionalist types who think that what is popular is what is constitutional and judicial-abdication types who are basically against striking down federal laws altogether: Rosen doesn't seem to stand up for either of them, and that is a fight for another day.

Also importantly, the heady days of Lochnerism that Rosen suppose that the Epstein crowd means to resurrect were not really. They seem to have been marked more by doctrinal incoherence than a serious libertarian program. Or, as David Currie puts it (The Constitution in the Supreme Court: The Second Century, 1888-1986 at 79):

In substantive terms it was an important and interesting period. The center of constitutional controversy was the clash of economic interests, and it was characterized by striking contrasts. While the sugar-trust case gave the commerce power an artificially narrow reading, the Court invited Congress to regulate anything it pleased under the guise of a tax, upheld congressional authority over aliens without reference to the enumeration of powers, and allowed the courts to issue injunctions not authorized by statute. The due process clause was employed for the first time to invalidate unreasonable rates, extraterritorial legislation, and the bakers' ten-hour workday; but the Court uphjeld most similar measures and cut back sharply on the protection afforded by the contract clause . . . . As a guardian of business . . . the Fuller Court cannot be described as very successful; the great builk of busioness-limiting measures that it addressed were upheld.

So the overall picture is that unwritten constitutionalism, like progressive taxation, is both politically inevitable and self-limiting. The normative concerns would be important if the range within which the Court oscillates were greater than it is; but it isn't, so they aren't.

Apparently we are on the verge of uncovering loads of classical works previously thought lost (via Alex Tabarrok).

Housman: Anyone who says "So what?" got left behind five hundred years ago when we became modern, that's why it's called Humanism. the recovery of ancient texts is the highest task of all - Erasmus, bless him. It is work to be done. Posterity has a brisk way with manuscripts: scholarship is a small redress against the vast unreason of what is taken from us - it's not just the worthless that perish, Jesus doesn't save.

Tom Stoppard: The Invention of Love