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June 09, 2006

Who decides?

Rick Garnett has some interesting thoughts and criticisms of this piece by Jeff Rosen, exploring what it means for decisions to be "democratic" or anti-democratic". My own thoughts run somewhat with Richard Posner's here:

The broader problem is that abstractions like "democracy" and "active liberty" are so vague and encompassing that they can be deployed on either side of most constitutional questions. A decision invalidating a statute on constitutional grounds may seem undemocratic, but even if it is not a democracy-enhancing decision (as reapportionment decisions are widely thought to be), it can be defended as an application of the "higher democracy" embodied in the Constitution. So originalists are democrats along with the loose constructionists. Likewise federalists, who want to honor the democratic choices made at the state and local level, and nationalists who want to honor the democratic choices made at the federal level. And are judges more democratic when they are giving legislators a helping hand (loose construction) or when they are sticking to the statutory language (strict construction)?

So I'm not sure that democracy is sufficiently concrete-- unless defined in various contentious and question-begging ways-- to be able to resolve any of these arguments usefully.

Still, the ensuing discussion in the comments is also interesting. I have been pondering this comment by Professor Garnett:
(J)ust by way of a quick take, it does seem to me that a resolution, as a constitutional matter, of a "who decides?" question might usefully be distinguished from the resolution, as a constitutional matter, of (say) what "ordered liberty" requires in that the former is *less* likely than the latter to involve a judicial declarations about the defects in the loser's values and commitments.

I am not so sure this can be right. The trouble is that "ordered liberty" decisions are different in degree, not kind, from federalism decisions. Both are "who decides?" questions. Sometimes the Constitution puts a question (whether to invade Iraq) in the hands of the national government. Sometimes it puts a question (how to apportion its electoral vote) in the hands of a state government. Sometimes it puts a question (whether or not to quarter a soldier in one's house during a time of piece) in the hands of a private individual. Sometimes the Constitution doesn't answer the "who decides" question at all. Anyway, it seems to me that Roe is fairly characterized as a "who decides?" case. It may be that Roe's answer was wrong, but it doesn't seem possible to me to draw a great line between the ordered liberty cases and the "who decides" cases.



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Fetters as freedom

Over at In The Agora, Eric Seymour wonders whether public schools should require girls to be vaccinated against HPV the same way that they require a number of other vaccinations for certain contagious diseases. As he points out, HPV is almost (although not quite, I believe) entirely preventable by simply refusing to engage in sexual activity. Then again, lots of communicable diseases are almost although not entirely preventable by simply refusing to go outside or engage in intercourse with other people at all, so it's not totally clear what the implications of that fact should be.

Anyway, I don't have well-thought-out or strongly-held views about requiring vaccines for children in state run schools. But I do want to point out to the HPV-vaccine skeptics one thing. Unlike in the case of mandatory vaccination of adults, mandatory vaccination of children is not necessarily as uniform of an invasion of personal autonomy. There are lots of kids who would like to have access to various things that make teenage sex safer, from birth control to the HPV vaccine, but are stymied by the disapproval or direct control of their parents. Requiring these things for all children thus liberates some while restricting others.

Of course, the problem of childhood and autonomy is a morass for libertarian-types anyway. I tend to think that on the whole parental control of children is marginally preferable to state control of children on grounds of diversity and anti-totalitarianism if nothing else. But at any rate, where sex is concerned I tend to think that personal control is better than parental control wherever that is feasible. Which it sometimes isn't.

UPDATE: Here are more thoughts from PG.



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pain

A year or so ago I decided I would try to boycott Au Bon Pain. For a place with bread in their name, you would think they might produce reasonable baguette. They do not. For a place that serves large quantities of pastries with coffee, you would think their coffee might be good. It's not. Plus, given Raffi's expose of their sandwiches and the fact that there's one across the street from the law school which otherwise might be profoundly tempting, I decided I should put up a fight.

Still, sometimes I would relent. There was an ABP a few hundred feet from IJ last summer, and when the office went trooping down there for half-priced baked goods, sometimes it was hard to avoid following along. And today, on my way to work with a thermos full of coffee, I desperately craved a little pain au chocolat so I stopped by the ABP in Union Station to pick one up.

Yuck. Because it is derived from a croissant, pain au chocolat should be flaky, not spongy. The chocolate should be recently melted and still softish, not grainy and separated like a Hershey's bar left too long in a car on a summer day. I suppose this is what Woody Allen meant by the triumph of hope over experience.



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