Professor Bainbridge...on law, politics, religion, culture & food

Letting Solum have the Last Word

Larry Solum and I have been having an extended debate over judicial activism and the feasability of a neoformalist approach to constitutional interpretation. We agreed by email that he would get the last word, which he has set out in a typically generous and thoughtful post that usefully contains links to the main posts in the series. What have I learned from this debate? (1) Larry Solum is a very smart and interesting guy, whose brain works in a very different way than mine (compare, e.g., our respective positions on the role of informed intuition in evalusating the scope of the feasabile set). (2) To come clean, I have been playing somewhat of a devil's advocate with respect to the question of whether we could undo decades of judicial supremacy absent a major constitutional moment. Larry's cogent feasability arguments, however, have made it even clearer that we likely would need such a moment. Until then, however, my function as a judicial conservative is to stand athwart the tracks of legal history yelling "stop." (3) Getting into an argument with Larry Solum is actually sort of pleasant; you learn something, but get treated fairly and with respect. Cool.

WSJ Op-Eds on Iraq

Two must read columns in today's WSJ ($). Fouad Ajami on The Curse of Pan-Arabia:

Consider a tale of three cities: In Fallujah, there are the beginnings of wisdom, a recognition, after the bravado, that the insurgents cannot win in the face of a great military power. In Najaf, the clerical establishment and the shopkeepers have called on the Mahdi Army of Muqtada al-Sadr to quit their city, and to "pursue another way." It is in Washington where the lines are breaking, and where the faith in the gains that coalition soldiers have secured in Iraq at such a terrible price appears to have cracked. We have been doing Iraq by improvisation, we are now "dumping stock," just as our fortunes in that hard land may be taking a turn for the better. We pledged to give Iraqis a chance at a new political life. We now appear to be consigning them yet again to the same Arab malignancies that drove us to Iraq in the first place.

Ajami raises a question that is really beginning to worry me; namely, the competence of those who are setting our Iraq policy:We can't have this peculiar mix of imperial reach, coupled with such obtuseness. ... Our goals in Iraq are being diluted by the day. There has been naivete on our part, to be sure, and no small measure of hubris. We haven't always read Iraq right, but if we abdicate the burden and the responsibility -- and the possibilities -- that came with this war, our entire effort will come to grief.

Then there's Bernard Lewis' Iraq, India, Palestine, which criticizes our increasing reliance on the feckless UN:

The line that Americans are degenerate, soft and pampered -- "hit them and they will run" -- has been a major theme of Islamic terrorists for some time now. It was temporarily silenced by the campaigns in Afghanistan and Iraq, but then revived by what was seen as public dithering and wavering. The turn to the U.N. will be perceived, or at least presented, as final and conclusive evidence of their view of America, and may well serve as the starting point of a new wave of terrorist action against Americans, reaching far beyond Iraq and perhaps even as far as these shores.

We must hope that the Journal puts these columns up on OpinionJournal.com, so that they can receive the wide audience they so richly deserve. In the meanwhile, though, if you're not a WSJ subscriber consider buying a copy today.

Poliblogging the CSA

Prompted in part by my post on the Hunley business, Steven Taylor has been blogging up a storm on the Civil War and slavery. It's all great stuff, but I'd suggest starting with this post, which summarizes his position and has links to his earlier posts on the topic. He concludes: "romanticizing that period of our history strikes me as problematic. And as long as we do, it seems to me that it hinders our ability to put it all truly behind us." Yep. Go read the whole thing (and follow the links too).

Do Gooders Doing Bad with My Money

Front page article in today's WSJ ($) on how a coalition of disgruntled pensioners, university students, and newspapers have used state FOIA requests to force the University of California to reveal financial performance data on the venture capital funds in which it invests. The VCs, of course, resent this - and rightfully so:

Venture capitalists argue that it's only fair to judge results after the full life of the fund, typically 10 years. Interim results are likely to look bad because they reflect the fund's fees, the quick failure of some start-ups and the immaturity of others. As those early numbers are made public, institutions like the University of California may feel pressure to nit-pick every decision. That would make it hard to invest for the long term, venture capitalists complain. Besides, they say, people might figure out how badly some of their start-up companies are doing, which would discourage potential business partners of those companies.

We have done remarkably well here at the UC by investing in VC funds:

Data released by UC show just how lucrative venture-capital investments can be. For the 10 years ended June 2003, the university earned an average annualized return of 41% from venture-capital funds. That was largely thanks to windfalls from funds that started life in the mid-1990s, just before the Internet boom. In the case of one Kleiner Perkins fund, UC put in $15 million starting in 1994 and earned $483 million as of March 31, 2003. The fund's remaining investments had an estimated value of $4.7 million on the date, giving UC a total return of 32.5 times its original investment. The UC system has assets of $58 billion under management. UC's more recent funds mostly show negative returns so far, partly due to the collapse of the Internet bubble. But the university predicts that performance will turn upward in the next few years as some of the venture-capital-backed start-ups mature and either go public or are sold.

Indeed, presumably due at least in part to these VC investments, the University's equity retirement fund has outperformed the S&P 500 over the last 5 years and did reasonably well relative to the index over the last 10. As a result of a suit by Woodward & Bernstein wannabes in the press, wet-behind-the-ears students who probably can't even spell investment let alone read a financial statement, and grumpy old fart pensioners, however, the university has been required to disclose a host of financial data on its VC fund investments. The predictable result?

[Big VC] Sequoia sent [a] letter severing relations with UC. "It is not in the interests of Sequoia Capital's other clients that we be hounded, badgered, and stalked by entities wishing to either profit from or publicize our private and confidential information," wrote Mr. Moritz, the Sequoia partner. He called it "the saddest business letter ever dispatched on Sequoia Capital stationery."

FYI: Sequoia put the UC into a fund that made a major early investment in Google that is about to pay off to the tune of zillions. And it's not just Sequoia or, for that matter, the UC:

Since [the adverse lawsuit, UC investment manager] Russ says, calls by his office to some of the leading firms go unreturned. As venture capitalists reduce the size of their funds, public institutions are often the first to be left out. Charles River Ventures, a leading venture-capital firm, has rejected new investments from public institutions, as reported by Private Equity Week. The University of Michigan and the state pension funds of Massachusetts, Pennsylvania and Virginia are among those who have gotten the snub from venture capitalists.

These do gooders are messing with my retirement money. If I had my way, they'd all get a swift kick in the pants. Update: Gordon Smith has more, concluding:

Given that most public institutions invest only a small portion of their funds in venture capital, the drive to disclose venture capital results seems motivated more by politics than principle. This seems like a pyrrhic victory for the public.

Yep.

Bainbridge v. Solum: Round [I’ve lost count]

Larry Solum's got a very long entry in our ongoing discussion of judicial activism. At the outset, it's worth noting that there's a substantial amount of commonality in our positions. We agree that judges sometimes use their power to effect personal policy preferences. We agree that's a bad thing. We even agree that the root problem is a crisis of constitutional faith. Where we depart, it seems, is that I've lost what little faith I ever had in judges to refrain from effecting personal policy prefernces in the guise of constitutional interpretation, while Prof. Solum retains his faith that the system can be fixed. In turn, this leads us to different recommendations for fixing a system we both agree are broken. Go read Prof. Solum's fascinating post and then come back and read my comments.

Rummy

My friend and fellow lawyer Howard Klein sent along the following question:

I wonder how many of the Congressional Democrats who are in full throat calling for Rumsfeld's head on a platter made any noise at all 10 years ago when then AG Janet Reno ordered the assault in Waco that resulted in the incineration of more than 80 souls. Maybe someone can check the record?

I'll publish the results if anybody wants to crosscheck it.

Judicial activism: It’s about the culture wars More on Judicial Supremacy

Randy Barnett weighs in again with quotes from various founders that collectively add up to the following:

These men did not care for unchecked democracy, having experienced it first hand, and they wrote a constitution with multiple checks on majority will includng separation of powers, federalism, limited enumerated powers, express prohibitions on federal and state powers, express protections of rights,and co-equal judiciary with a "judicial power" that included judicial nullification of laws that violated these restrictions.

I wonder what those founders would think of our modern Supreme Court as it happily goes about the business of, as Justice Scalia put it, "Day by day, case by case, ... designing a Constitution for a country I do not recognize." My guess is that many of them would agree with Judge Bork that the courts have taken sides in the "struggle between the cultural or liberal left and the great mass of citizens who, left to their own devices, tend to be traditionalists. The courts are enacting the agenda of the cultural left." And even among those who would take the other side of the culture wars (Jefferson?), there might be some who would recognize that their cherished checks and balances are breaking down as the Court becomes less and less accountable. (Quotes taken from Richard Neuhaus' review of Bork's latest book: Coercing Virtue: The Worldwide Rule of Judges. Those who have been following this debate will scarcely be surprised by my ringing endorsement of that book.) As I read history, most of the founders were sensible and pragmatic men rather than visionary idealists. In their time, perhaps runaway democracy was the main problem. In our time, the main problem is undemocratic legislation by thin (often 5-4) majorities of the Supreme Court by which the justices impose their personal policy preferences on virtually every aspect of American life. Indeed, even Prof. Solum recognizes that:

The politicization of the judiciary plus the general and abstract language of the individual rights, separation of powers, and federalism provisions of the United States Constitution slowly but surely created a judiciary that sometimes views constitutional interpretation as the appropriate vehicle for enacting personal beliefs about what the law should be into binding constitutional law.

Surely that is a situation of which the founders would have disapproved. Update: Barnett replies:

And with extremely rare exceptions, courts are not imposing their preferences on individual citizens. They are stopping legislatures from imposing their preferences on individual citizens. When speaking of imposing one's preferences, there is a huge difference between a court mandating gay sex--which no court has--and stopping legislatures from putting adults in prison (where they may well be raped) for engaging in consensual with an adult of the same in the privacy of their own homes, which has now been held unconstitutional.

A couple of observations: (1) It is now clear that Barnett is on the other side of the culture wars from most conservatives. Modern conservatism is not solely about "individual rights," but rather (as Ramesh Ponnuru explained) is premised on "three basic propositions: that American foreign policy should seek to end totalitarian regimes; that the domestic functions of government, and especially of the federal government, should be strictly limited; and that the moral precepts traditionally associated with Christianity (sometimes the formulation includes Judaism as well) should be upheld." Legislative efforts to uphold the third prong evidently constitute legislative tyrrany in Barnett's world. (2) It's not just about sex. Barnett's expansive theory of the 9th amendment is at least as radical as William O. Douglas' theory of penumbras in terms of its ability for judges to invent reasons to strike down laws. Hence, Barnett's theory apparently validates not just Lawrence but also Roe v. Wade. Any legal theory that would validate the murder of over 40 million innocent unborn children raises serious moral concerns, because it likely constitutes material cooperation with evil. (I'm trying to get a discussion of this issue started over at the Catholic blawg Mirror of Justice.) Update: Barnett replies:

On my theory of the 14th Amendment in which all its limitatations on states are justiciable, IF a fetus is a "person" then laws permitting abortion violate the Due Process Clause, and if a fetus is also a "citizen" (and if the fetus is a person, then why isnt't it also an American citizen too?), it also violates the Privileges or Immunities Clause. On this reasoning, state laws permitting abortion should be held unconstitutional, and under Section 5 of the 14th Amendment, Congress has the power to protect fetus's from murder if a state fails to do so.

While I do not consider a fetus to be a "person"--either theoretically or historically--Bainbridge does. Yet HIS theory of the Constitution in general, and of the 14th Amendment in particular, would allow abortion--which he considers evil and murder--to continue unchecked so long as a mere majority of the legislature so vote. Indeed, the pro-life forces repeatedly say that they this is an issue properly to be left to the states.

The dispute remains - who decides? A judge who agrees with Barnett that a fetus is not a person can effectively take the issue of the table, at the very least until turnover on the court produces a majority prepared to reverse that decision. (And, as Casey demonstrated, even the more conservative members of the legal elites cannot be trusted to do the right thing in this area). When a legislature decides to allow abortion, we can try voting them out of office immediately. In a democracy, there is always a risk that immoral laws will be made. I simply prefer to take my chances on legislators who can be held to account through the electoral process than on unelected judges subject to no meaningful checks and balances. Update: Barnett still thinks its about sex and he's still wrong about that. Update 2: Clayton Cramer is on the march again, with a post explaining the conservative skepticism of the 9th amendment and a post on the role Barnett's theory plays in the culture wars. Both are must reads. Update 3: Joel Buckingham at Calblog agrees with Randy Barnett "on the founders view of democratic majoritarianism," but argues that "despite the founders aversion to democratic majoritarism, their device in limiting it, was not an imperial judiciary." Yep.

Martha’s Latest Gambit

Send me to jail, watch me fire my employees:

Lawyers for Martha Stewart plan to say a prison sentence for the domestic trendsetter could harm her company and lead to layoffs of some of its 500 employees, according to a published report Monday. ...

Stewart's lawyers will cite a 1995 decision that avoided jail time for a corporate executive because he was considered a crucial figure in his company, the Wall Street Journal reported, citing a person familiar with the matter.

But what about the efforts that the board of MSO reportedly have been making to rebrand MSO so as to be less dependent on Martha's name? Martha's putting the board in an awkward position: Do they try to help Martha stay out of jail or proceed with the rebranding? I don't see how they can do both simultaneously. After all, if they say - "we can't survive without Martha" - they undercut the rebranding process. On the other hand, if Martha goes to jail and the rebranding process fails - as many do - then the firm is really in trouble. Tough call.