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

Reply to Barnett

In a long and thoughtful post over at the Conspiracy, Randy Barnett takes issue with a couple of recent posts at which I took some passing swipes at what I perceive to be his defense of a libertarian version of judicial activism. As Barnett observes, "no meaning of any constitutional provision can be established in a blog," and he has the advantage of having written a very fine book (which I highly recommend) Restoring the Lost Constitution: The Presumption of Liberty. Confining myself to the blogosphere, however, I would note that Barnett's arguments have not gone uncontested. Barnett asks, for example: "Is discovering and enforcing the original meaning of the Ninth Amendment activism?" Calblog, for one, thinks so: "We ought to respect it, but we can't come to the court to enforce the 9th amendment. Rightfully so, its interpretation belongs in the Congress and statehouses." As I understand Barnett's argument, moreover, he claims that the 9th Amendment and the Privileges & Immunities clause incorporate the "harm principle" so beloved of libertarians. (For a good critique of judicial activism based on the harm principle, see this post.) Hence, laws expressing the settled moral traditions of the community can be overturned by a 5-4 vote of the Supreme Court. Owen at Southern Appeal did a good job on this argument:

Barnett's [argument] is remarkably unsatisfying, because it simply argues in favor of one tyranny over another. Under his standards, American society would effectively be ruled by the courts, who would be vested with the authority to judge which moral standards are legitimate and illegitimate, presumably using the old libertarian standard of the "harm principle."

However, judges would not be required to use such a standard. They could instead all claim to be Nietzschean ubermensches, unrestricted by humanity's 'slave' morality, and rule based upon their own ideas of what would best allow for human flourishing. Or they could appeal to Peter Singer, and begin demanding that the liberties of animals be protected under due process because, after all, animals can feel pain as much as any human being. There's no real restrictions because what Barnett argues for is an unprecedented use of judicial power to enforce a single ideology -- namely libertarian ideology. But there's no reason to believe it has to be that particular ideology.

We do indeed run the risk legislative tyranny. That's the price of being a democracy. However, this problem is not solved, and is instead made far worse, by replacing the tyranny of democracy with the tyranny of oligarchy. A few anointed Supreme Court justices ought not be society's moral compass, whether they are invoking the philosophy of Mill or Mussolini. It's a pity that Barnett doesn't feel the same way, and that he twists originalism into something incoherent for the ignoble purpose of establishing libertarianism as constitutional doctrine.

As Owen's concluding comments suggest, one might plausibly argue that any claim of judicial supremacy - whether made on behalf of a libertarian or left-liberal social agenda - is activism, notwithstanding what Barnett claims to be the original meaning of "the Judicial Power" in Article I of the Constitution. Contrary to what Barnett seems to believe, I doubt very much that the founders anticipated the sort of expansive claims of judicial supremacy that underlie recent decisions like Lawrence. Certainly, in the generations immediately after the founders the executive branch resisted expansive judicial supremacy. Andrew Jackson, for example, wrote in his message vetoing the Second Bank of the United States:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Likewise, here is what Lincoln said about Dred Scott:

If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

The founders were very big on checks and balances, but in our time we have ceded a wide range of issues to nine unelected old men and women who decide issues of national import with confidence that they are immune from being held accountable for their decisions. As I understand his work, Randy Barnett would allow this unchecked power to remain intact provided the judges limited themselves to enforcing the harm principle. Even if I believed the harm principle to be the be all and end all of sound public policy, which I emphatically do not (believing with Burke that the moral traditions of society provide a solution to the problem of value disagreement), I would reject judicial supremacy for the reasons I've been blogging about in this archive category. Uodate: Clayton Cramer springs to my defense with a wonderful post, with a well-reasoned argument, the highlight of which for me was his observation that: "If the privileges or immunities clause was indeed understood by the Congress that passed, and the states that ratified the Fourteenth Amendment to protect the right of people to have sex with whomever and however they wish, then why did every state have laws that specifically violated this right?" Update: More here.

18 Months of Driving Like a Weenie

Instead of commiserating with me over my recent traffic mishap, Alan Kellogg [who has been picking on me lately ] suggests that I try "spraypainting SUVs with snarky remarks as you wait behind one, instead of trying to illegally pass the gasoline powered yurt." (No thanks. I like private property even more than I hate SUVs. As Russell Kirk observed, "freedom and property are closely linked: separate property from private possession, and Leviathan becomes master of all.") He also asks whether "there's a limit to how many times you can take TS before it's mandatory payments and (possible) stays in the Scofflaw Hilton?" Nope. One of many great things about California is that you can take traffic school as many times as you want (it turns out that I am eligible, so I'll be going for the third time since I moved here in 96). The hitch is that you are only eligible for traffic school every 18 months. So I'll be doing traffic school (probably on the internet) and then driving like a wuss for the next year and a half.

Sometimes its better to be lucky than smart

So I was playing Texas Hold 'em poker holding a 4 of diamonds and a 7 of spades. Nobody raised on the deal. The flop came up 10 of spades, 9 of hearts, and 6 of spades. Nobody was betting very aggressively so I decided to stay in to see if I could draw the inside straight, which even my non-card playing mom knows not to do. The turn came up 2 of spades. Again, nobody forced the action very much, so I stayed in. The river came up king of spades. No inside straight, but I had pulled two runners for my flush. Somebody had a straight and another guy had two pairs. The guy two spaces over had a flush, but my little 7 kicker prevailed over his 4 of spades. Heh. Two lessons: (1) the smart call was to fold after the deal and certainly after the flop, but sometimes its better to be lucky than smart. (2) The guy with two pairs had both pairs after the flop. He should have hammered the bet to drive the rest of us out instead of letting us hang around for the turn.

Busted

After a couple of bouts of excessive heat, we finally had a really nice day today in So Calif. So I dropped the ragtop, cranked up some tunes, and went zipping down Sunset Blvd. On the stretch just east of the main Bel Air gate, I came up behind a big Cadillac Escalade SUV with tinted windows. Couldn't see through it, over it, or around it. Well, you know how I feel about SUVs. So it was put the pedal to the metal and blast around the SOB. Unfortunately, a sneaky LA County motorcycle cop was hiding just in front of the SUV, right where I couldn't see him until it was too late. The cop was perfectly nice about the whole thing; didn't even give me the usual lecture. In fact, we had a rather pleasant chat (under the circumstances) about the evils of SUVs, after which he wrote me up for doing 55 in a 35 zone, which was really quite generous of him given how fast I was actually going. Sigh. I just wish I could remember whether I'm eligible for traffic school.

Doing Good under Conditions of Scarcity

One of the core lessons of economics is that we live in a world of scarce resources. The tools of economics, in many respects, thus are designed to help us make the best possible choices as to how to allocate those resources among competing claims. When we turn to major public policy problems, however, we frequently fail to recognize that tough choices about resource allocation must be made. As Bjorn Lomborg observed in a WSJ ($) op-ed today:

Strangely, this basic concept has been almost absent in debate about one of the most important choices the world makes: how we spend money designed to improve living standards around the globe. This money is most obvious in overseas development and aid spending, but is also achieved through trade policies, the funding of research into diseases, investment in environmental protection, peacekeeping missions and maintaining the U.N. apparatus. The cash has often tended to follow the public's attention from disaster to catastrophe -- indeed, the "cause of the hour" changes as fast as the media can set up cameras in another hotspot. Today's fears about climate change are yesterday's concerns about overpopulation, and tomorrow's outcry for a response to famine. ...

In an ideal world, we would have the money and the political capital to do everything. We would be able to end malnutrition, illiteracy and refugee problems, halt climate change, stop global conflicts, and wipe out corruption. But we live in the real world, where we must focus our efforts to achieve even some of these things. We have a stark choice. We can continue to prioritize without acknowledging that we are doing it. Or, we can work out a rational framework for our spending that makes some more sense.

Towards that end Lomborg and the Economist have gathered 9 world-class economists to formulate the so-called Copenhagen Consensus. (The Economist's coverage of the project is indexed here.) It is an interesting and worthwhile project. Yet, I am somewhat skeptical of asking economists to formulate priorities, as opposed to merely asking them to advise policymakers. One is reminded, for example, of Harry Truman's despreate cry for "a one-handed economist!" More to the point, perhaps, one is reminded that the tools of economics are far better suited for determining whether a particular state of affairs is allocatively efficient than for deciding whether such a state achieves other important values like distributional justice, virtue, or morality. Granted, as Judge Richard Posner continues to assert, "[t]he great power of wealth maximization, and of economics generally, is in clarifying the costs and benefits of a proposed course of action, eliminating or at least reducing the element of factual uncertainty, and in that way minimizing, the area of genuine irreducible moral debate." Richard A. Posner, Rebuttal to Malloy, 24 Valpariso L. Rev. 183, 184 (1990). Yet, we must leave room for allocative efficiency to be trumped by what Judge Guido Calabresi famously referred to as "Other Justice." Here I take the liberty of paraphrasing Paul Johnson’s defense of capitalism:

The divine plan was indeed that we should enjoy the fruits of the earth and of our own industry, and [wealth maximization] is the best way we have yet devised to organize the latter. But it was equally the divine plan that God should be worshiped and obeyed and, not least, feared. The fear of the Lord, in short, is the beginning of [economic] wisdom, as of any other kind.

Whether that balance is amenable to legislative achievement, of course, is a question for another day (and one I addressed with skepticism in my contribution to Christian Perspectives on Legal Thought).

Should Conservatives be Cheerful?

Insofar as one may draw inferences from his letter to the editor in today's WSJ ($), Robert Bork still thinks we're Slouching Towards Gomorrah, and he knows where to lay the blame:

The barbarians are no longer at the gate but inside and there is no end in sight to the damage they are inflicting. ... American courts, state and federal, having enlisted in the culture war on the side of the elites, are leading the procession to the moral anarchy of radical personal autonomy. ... As Justice Scalia put it in one dissent, "Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize."

Yep. This is why I find the sort of judicial activism advocated by libertarians like Randy Barnett no less threatening to democratic values than the sort advocated by left-liberals like Larry Tribe or Erwin Chemerinsky. Update: See my reply to Randy Barnett here.

Quattrone Conviction

A few weeks ago, it looked like white collar defendants in the various corporate scandals were doing pretty well. Of late, however, the tide has shifted back in the prosecution's favor. Frank Quattrone's conviction on obstruction charges is but the latest example. I find something vaguely Star Chamber-ish about the Quattrone conviction, just as I did with respect to the earlier Martha Stewart conviction. In neither case did the government indict the defendant with respect to the alleged underlying violations. Instead, both were indicted for subsequent acts that allegedly obstructed the investigation. Yet, if that investigation did not result in charges, it seems vindictive to charge obstruction (especially since in neither case was the obstruction very successful in interfering with the investigation). In any case, it'll be interesting to see if Quattrone's appeal succeeds. The charge that the judge was biased against the defense seems to have some element of truth, but that's an incredibly hard issue to win on appeal. Instead, a successful appeal more likely will be based on the judge's refusal to admit a lot of evidence the defense claims is exculpatory.

Jessica Simpson - Blog Target

Pop culture-challenged Gordon Smith is blogging on Jessica's emerging entreprenurial streak, while Awful Plastic Surgery claims she has had both a breast lift and implants.