Eugene Volokh's Blog, page 2601
March 6, 2012
Cato, the Kochs, and Supposed Libertarian Inconsistency
Some critics of Cato's stance in the Cato v. Koch dispute claim that it is inconsistent for libertarians to criticize the Koch brothers' exercise of their rights. After all, libertarians support property rights, so how they can criticize anyone's use of their property? Such claims are misguided. They are the equivalent of arguing that if you are committed to freedom of speech, it is inconsistent for you to criticize anything anyone says.
In both cases, there is no inconsistency in saying that you have the right to do X, but you nonetheless should not exercise that right. For example, I believe that bloggers have the right to promote racist conspiracy theories. But I also believe that they should not actually do so. I oppose government efforts to censor racist conspiracy-mongering. But that does not mean I can't criticize it when it occurs. Similarly, if the Kochs are legally entitled to take control of Cato (which is disputable), I would not want the government or anyone else to use force to take away their rights. As far as I know, none of the Kochs' libertarian critics are advocating any such thing.
But there are many situations where it is unwise or even immoral for us to make use of our rights, whether they be property rights, free speech rights, or others. In this case, the Kochs' exercise of their rights is ill-advised because it would damage Cato and the cause of libertarianism with little or no offsetting benefit. For that reason, I believe they should drop their lawsuit even if their position on the disputed legal issues is completely correct.
A more subtle version of the inconsistency argument holds that the real problem here is not property rights as such but libertarians' supposedly unjustified defense of the right of wealthy people to spend money on political causes. However, if the Kochs prevail here, it will not be because they have somehow "bought" Cato with their wealth. For many years now, they have only provided a tiny proportion (about 4-8 percent) of Cato's funding. The Institute could easily continue its work even if the Kochs never give it another dime. If the Kochs prevail, it will be because the arcane details of Kansas corporate law support their legal position – not because Cato has somehow "sold out" for their money.
More generally, if we bar wealthy people from funding think tanks and advocacy organizations, the only realistic alternatives are either government funding or requiring these institutions to raise all their funds through small donations from many different donors. The government, alternative creates obvious conflict of interest problems. A public policy research institute exclusively dependent on government funding is not likely to bite the hand that feeds it. Indeed, the problem is much more severe than in the case of institutes dependent on private funds. If one private donor withdraws, there are many other alternatives (as witness Cato's ability to survive despite the Kochs' withdrawal of support over the last 20 years, and the withdrawal of other donors who opposed Cato's stance on the 1991 Gulf War). By contrast, government is a monopoly. If it withdraws its funding, there is no other government to turn to, though perhaps state governments can fund think tanks that have fallen out with the feds.
Relying on small donations is also problematic. It makes it difficult for a research institute to survive if its ideas are unpopular or it is not well-known. Historically, many new ideas and causes have been successfully promoted by a small group of donors willing to buck conventional wisdom. Groups such as the NAACP and the ACLU were established in large part with funds provided by a few wealthy donors. The same goes for many more recently established organizations on both the left and the right.
Finally, it is simply not true that reliance on wealthy donors leads to a think tank market dominated by a monolithic "pro-corporate" agenda. Just looking at a few of the major think tanks located in Washington, DC, a very wide range of perspectives is represented: libertarian (Cato); conventional conservative (Heritage); neoconservative (AEI); moderate liberal (Brookings); conventional liberal (the Center for American Progress, the Economic Policy Institute, the Urban Institute, and others); radical left (the Institute for Policy Studies), and many think tanks addressing a narrower range of issues from a variety of viewpoints. Wealthy donors are a sufficiently diverse lot that we are in no danger of having a monolithic think tank market, even if think tanks were completely dependent on them for funding (which most are not). Indeed, there is considerably more ideological diversity among think tanks than in many parts of the academic world.
CONFLICT OF INTEREST WATCH: I have detailed my various ties to the parties in the Cato-Koch dispute here.
UPDATE: It's not entirely clear to me whether AEI should be characterized as "neoconservative." The organization has a number of scholars who fall into other conservative camps, and also a few libertarians. I think neoconservatism is probably the dominant strain of opinion there. But I can understand if others perceive the institution differently. In any event, whether AEI is distinctively neoconservative or a hodgepodge of different types of conservative and libertarian thought is not crucial to my broader point.
UPDATE #2: I have corrected the link in the third paragraph of this post. Thanks to readers for pointing out the initial error.
State May Force-Feed Prison Inmate Who Is on a Hunger Strike
So holds the Connecticut Supreme Court in Commissioner of Correction v. Coleman (Mar. 13, 2012) (tomorrow's news today!). The court rejects the inmate's common-law claims, the inmate's constitutional claims, and the inmate's appeal to supposed internationally recognized legal standards; it also canvasses past cases from other states.
Larry Solum on Originalism and Political Ignorance
At the Legal Theory Blog, Georgetown law professor Larry Solum – a leading originalist scholar – has the following comments on my new paper, "Originalism and Political Ignorance":
If Somin is correct, his argument provides support for one of the core arguments of "Semantic Originalism," that the success conditions of constitutional communication can be met if we assume that the communicative content of the constitutional text consists of the conventional semantic meanings of the words and phrases as combined by shared understandings of syntax and grammar. Any additional communicative content must be delivered by the publicly shared context of constitutional utterance. If Somin is right, then that context is relatively information poor.
Somin does not argue that the public was generally ignorant of conventional semantic meaning–and this seems unlikely, since shared semantic understandings of some sort are required for linguistic communication to succeed.
Solum's point has a lot of merit. The public need not know as much if all that originalist theory requires of it is an understanding of "conventional semantic meanings of the words and phrases" in the Constitution. I made a related point in my article when I noted that political ignorance is less of a problem for the original meaning of parts of the Constitution that are clear and unambiguous (pp. 24-26). I also suggested that the challenge posed by public ignorance may counsel in favor of literal rather than figurative interpretations of constitutional text, since low-knowledge voters are more likely to be aware of the former (pp. 44-45).
However, semantic meaning is not a panacea for the problem of ignorance. In many important cases, the semantic meaning of parts of the Constitution is ambiguous enough to allow more than one plausible meaning (e.g. – with terms such as "liberty," "property," and "equal protection of the laws"). Many of our most important constitutional disputes involve broad phrases like these, to which different people can attach widely divergent meanings, all of them linguistically plausible. In such cases, widespread public ignorance makes it difficult or impossible to pin down an original meaning. Many low-knowledge voters may have been unaware of the dispute and/or had no clear view on how to resolve it.
Koch v. Cato — The View From Koch
I have spoken with quite a few folks close to the Koch brothers and their organizations, but have not been able to get anyone to speak (let alone answer questions) on the record. I have, however, come across a letter sent to alumni of the Charles G. Koch fellowship program detailing the Kochs' position. I believe the letter is sincere, but I think most of the arguments are beside the point. Yes, if the Kochs' interpretation of the shareholders agreement is accurate, they are within their rights to enforce it and Cato's other shareholder and the Institute are obligated to comply. But so what. The existence of the agreement says nothing about whether it should be enforced by the parties, and that's the issue — a point the letter concedes when it notes that the Kochs are willing to consider alternative arrangements.
The concern I expressed in my initial post (and elaborated upon here) is that enforcing the agreement so as to establish Koch control of Cato comes at a cost. A Koch takeover of Cato, however well-intentioned, will necessarily diminish the Institute's credibility and compromise Cato's ability to advance individual liberty. This is true whether or not the Kochs are within their legal rights to take such actions and whether or not they have better ideas as to how Cato should be run than current Cato President Ed Crane. These have been the dominant concerns expressed about the Kochs' actions, and yet to such concerns the letter offers no meaningful response. There is a brief mention of an offer to consider alternative corporate structures, but no indication of what alternatives were proposed or how such alternatives would preserve the Institute's independence — real and perceived — and its reputational capital. A proposal that satisfied such concerns would be welcome — and would along way toward convincing many of the Kochs' libertarian critics that they are not engaged in a hostile takeover. But until such a proposal is made, the fact remains that the Kochs are engaged in an effort to take control of Cato.
Meanwhile, the Koch-Cato feud has made the NYT. Here's additional commentary from Patrick Brennan at National Review and Justin Logan at The American Conservative.
UPDATE: Tony Woodlief comments:
I don't know much about this Cato business. I do of course know Koch. I know people there well enough to find laughable the notion that they are somehow opposed to liberty, or that they could ever imagine Cato is essential to some secret partisan or corporate agenda and must therefore be taken over. . . .
But I suppose right now the point is to circle the wagons, craft a narrative of conspiracy, and paint whatever side one is not on as intransigent and small-minded. None of which will have any bearing on the final legal decisions, but all of which is to the great delight of those who despise liberty and would love to see Cato torn down.
Former Cato staffer Will Wilkinson writes a lengthy post arguing the stakes in the Koch-Cato conflict are smaller than many suppose. He concludes:
I think it's better for libertarians if some prominent libertarian institutions remain outside the Kochtopus . . . . Still, this isn't a battle between good and evil, and the stakes are probably lower than you think. Of course, nobody likes to be on the wrong side of creative destruction's wrecking ball, but it can be indispensable and revitalizing, even for ideological movements.
Originalism and Political Ignorance
My paper on "Originalism and Political Ignorance," currently under submission to law journals is now available on SSRN. Here's the abstract:
Original meaning originalism may now be the most popular version of constitutional theory in the legal academy. The methodology has been endorsed by at least two Supreme Court justices and well-known scholars from across the political spectrum.
Original meaning is usually interpreted as focusing on the public understanding of the meaning of a constitutional provision at the time of ratification. This makes it essential to try to determine what the public actually knew and understood about the meaning of specific parts of the Constitution at the time they were enacted. If most of the public knew little or nothing about the constitutional provision in question, it may be difficult or impossible to determine its original meaning.
The evidence of extensive public ignorance on even very basic political issues suggests that such situations might well be quite common. Yet none of the rapidly growing literature on original meaning has so far grappled with the reality of widespread public ignorance.
This article begins the task of filling the gap in the literature. Part I describes the ways in which various theories of original meaning implicitly depend on assumptions about public knowledge. The problem is most severe with respect to determining the original meaning of provisions that are relatively vague and open-ended and least so when it comes to those that are more clear and precise. However, many of the most important disputes in constitutional law involve the former.
The available empirical evidence on political ignorance suggests that the public may well have been poorly informed about many constitutional issues at the time of ratification. Indeed, political ignorance is actually rational for most voters.
In Part II, I consider several possible solutions to the challenge posed by political ignorance. These include relying on the perceptions of political elites, looking to contemporary coverage of constitutional issues in the popular media, and assuming that the public divined an original meaning after all, by relying on "information shortcuts." Each of these approaches has some merit, but all also have important shortcomings. Part III briefly considers two ways in which originalists could respond to the challenge of political ignorance by modifying their theories: adopting a presumption in favor of literal over figurative interpretations of constitutional text, and leaving more issues to be resolved by construction rather than interpretation.
Political ignorance is not a terminal problem for originalism, and certainly does not discredit the theory completely. But it is an important issue that both originalists and their critics need to pay more attention to.
John Bellinger Comments on the Kiobel Alien Tort Statute Reargument, and I Comment on Incentives in the ATS
Yesterday was a busy day in International-Foreign-Relations-Law-Land, between the Eric Holder speech on national security and targeted killing at Northwestern University and the quite unexpected announcement, noted by Co-Conspirator Jonathan below, that the Alien Tort Statute case of Kiobel will be re-argued in the Supreme Court. Jonathan points to SCOTUSblog for details – let me add a comment from former DOS Legal Adviser John Bellinger at Lawfare:
The Court's order may reflect that a majority or plurality of the justices would like to decide the case on the larger issue of whether the Alien Tort Statute even applies to torts committed in other countries, rather than on the narrower issue of corporate liability, and that other justices want to have more briefing on the issue, which was not addressed by the Second Circuit. As I noted in my post about last week's oral argument, Justices Kennedy, Roberts, and Alito focused almost all of their questions on the diplomatic tensions and problems under international law caused by extraterritorial application of the ATS. This was also the issue that I addressed in my own amicus brief, and that was the focus of the amicus briefs of the Netherlands, Britain, and Germany ….
This development will put the Obama Administration in a difficult position. In its original amicus brief in support of the petitioners, the Administration argued in favor of corporate liability, but made no mention of the numerous diplomatic complaints about the ATS filed by other countries. Assuming that the Administration files a new amicus brief, it will face a dilemma. It will either have to argue against extraterritorial application, contrary to the position of human rights groups and undercutting its prior argument in favor of corporate liability. Or it will have to argue in favor of extraterritorial application of the ATS (at least in some circumstances), which is contrary to the position of many foreign governments and inconsistent with international law principles of jurisdiction. As three members of the International Court of Justice said in the Congo Arrest Warrant case, "[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally." Moreover, the Obama Administration would have to reverse the arguments against extraterritorial application of the ATS made by the Bush Administration in its brief to the Supreme Court in 2008 in the Apartheid case (which the Solicitor General may be reluctant to do). This may be one reason why the Administration asked the Supreme Court not to address the issue of extraterritoriality in its original amicus brief.
One might add that the amicus brief drafted by Harvard Law School's Jack Goldsmith in support of defendant corporation Shell has had an effect; Goldsmith and his amicus brief were mentioned by name in the oral argument. This was the point – noted by (swing) Justice Kennedy – that other countries don't do this, don't believe such a mechanism is part of or consistent with international law, and believe it makes a hash of ordinary principles of jurisdiction. Goldsmith's brief was not even primarily about extraterritoriality – it was about whether this was international law as such, or instead some kind of well-intentioned but nonetheless faux-international law committed to the hands of US courts. (I have sometimes referred to it here and at Opinio Juris as the "law of the hegemon" which US district courts have been persuaded by ATS plaintiffs' lawyers, mistakenly, to regard as "international law.")
This then combines with a general worry on the part of Justice Alito – but not he alone – that particularly the alien-to-alien cases taking place in an alien land simply have no reason to be in US courts, and that what little can be gleaned about the history and purpose of the statute does not support extraterritorial application, at least in the territory of another sovereign. Piracy on the high seas, yes – and hence presumably the importance of the qualifier in the Court's briefing instructions to address not extraterritoriality as such, but instead territory of another sovereign.
There are things I wish could be got in front of the Justices that I, as a non-litigator, don't really know how to frame in briefing terms. One is the confusion between international law and "law of the hegemon." Another is that there are many real-world problems of perverse incentives created by the breadth of the ATS. The most obvious is that the best is the enemy of the good. Is it really such a good idea to push Western countries' corporations out of places like Sudan and leave them to the investment practices of Chinese corporations? (Added: It is of course true that the concerns about perverse incentives can run the other way, such as the incentive to locate in some place with weak environmental or labor regulation in the first place; my view is that those are more widely understood as background assumptions than these other less visible incentives problems, and I think the ones I raise here are more important than commonly understood, so I concentrate on them here.)
This problem of pushing out pretty good companies that are subject to real human rights pressures in a regulatory way – provided that they don't conclude that the risk of damages, bad publicity, etc., makes it more prudent to sell to Chinese companies – is exacerbated by Sosa standards, ironically. Sosa (the Court's last and not very successful – Delphic, mostly – attempt to standardize ATS jurisprudence) says the norms alleged to have been violated have to be really serious – genocide, crimes against humanity, slavery, piracy, that sort of thing. So: you are the senior executives and board of directors of some American or Canadian company that has invested in a rubber plantation in Africa somewhere; well aware of the public relations, legal, and damages issues involved in various labor practices, particularly child labor, you have various systems in place, but you know perfectly well they won't be perfect.
When the ATS lawsuit comes, however, in order to make it out under Sosa, your company and perhaps you personally are accused of slavery and maybe crimes against humanity. Not merely violations of labor practices under some jurisdiction – but slavery. We are all aware of the bad publicity problems for the company – but often neglected is the fact that these executives think these charges are horribly unfair and vicious to them personally, and way outside of the scope of litigation that ought to be applied – labor regulatory standards, at a level suited to determining if there are adequate safeguards in place, fines, sure, serious deterrents, sure, but slavery? They take it personally. Occasionally they fight, because they want to clear their own names. But often business prudence prevails and they settle quietly. But – they often decide, if they hadn't decided long before, to avoid the whole ugliness and sell the business. Is that such a good idea?
Back in the 1990s, a human rights organization asked me to go to Guatemala, a country I knew well, to look at the labor practices of a shirt manufacturer that operated maquiladoras there. The head of the company was a leader in labor and environmental standards in his business, and the organization made a point of inviting him onto its board in an experiment in trying to find common ground with progressive business leaders. Now his company was accused of child labor violations and various other things. So I went down to look and didn't find much. This wasn't about the ATS, to be sure, though it might have morphed into a suit. Instead what remains most important today was the conversation with the then-labor minister in Guatemala, an ex-leftist who had been with the opposition during the civil war and whose not merely progressive, but revolutionary, credentials were impeccable.
When I told him that there was pressure for this company to close its plant, he was aghast. He said, in impassioned terms, this would be terrible. The company might have had an occasional child labor violation, he said, but it had inspectors who were clean, it offered child care, a clinic, and sent the kids of the women to school, and provided milk for the families. None of the Asian maquiladoras would ever consider such a thing – on the contrary, they fired the Indian girls immediately if they found out they were pregnant (what he actually said was, I know of one maquiladora from Asia where the security guard threatens to punch the women in the stomach when they come in the door to start work to see if they will say no because they are pregnant). I have hundreds of illiterate peasant girls streaming into the city every month, he said – I want your American company to open dozens more plants to absorb them, on these terms. It's that or prostitution.
The American company decided the potential bad publicity wasn't worth it and closed the plant; I'm sure the marginal, if tiny, increase in Central American labor costs had something to do with it as well. But note: the human rights advocates were not unhappy with that decision. Since they had no welfare obligations for the Indian women at stake, they could afford to stand on perfect principle; no hard tradeoffs for them. Not so the labor minister.
Now, this is not about the ATS as such and I have no idea how one gets that notion of forward looking incentives before the Court. But I would hope that these kinds of incentives questions could be inserted into the discussion somehow. At a minimum, one might wonder whether the 18th century ATS – a one-sentence statute – is sufficient ground for the judiciary to supervise these incentives and tradeoffs, or whether these are deep policy questions which Congress would have to commit more explicitly, and in some kind of serious statutory framework, over to the District Courts for adjudication.
Chris Wallace "Interviews" Steven Rattner
Paul Roderick Gregory describes an imaginary interview by Chris Wallace of Steven Rattner on the auto bailouts. Here's the thing that Rattner never quite seems to address–even if it is believed that government direct lending was necessary to provide DIP financing (which I doubt, but will accept for the sake of argument) there is nothing in that narrow issue that implies that anything else that happened in the auto bailouts (scrambling priorities, giveaways to the UAW, and general politicization of the entire bankruptcy process) was essential or even useful. Using the need for DIP financing as the tail to justify the entire mangy dog of how the auto bailouts actually proceeded is thus largely a smokescreen–none of the deviations from traditional bankruptcy processes did anything to further the long-term competitiveness of the companies out of bankruptcy.
I wrote more copiously about the auto bailouts here and here.
March 5, 2012
Libertarianism and the Civil War
Over at Libertarianism.Org, Jonathan Blanks has an interesting series of posts criticizing libertarians who defend the secession of the Southern states that precipitated the civil war (see here and here). Like Blanks, I believe that any possible justification that the Confederates may have had was negated by the fact that they seceded for the purpose of perpetuating slavery – a far greater violation of libertarian rights than anything white southerners could complain of in 1861.
There are, generally speaking, three types of libertarian perspectives on the Civil War. Many libertarians actually support the war, some condemn it without defending the Confederacy, and some are actually pro-Confederate.
I. Libertarian Unionism.
Many libertarians actually agree with the conventional wisdom on the conflict: that, although it caused great harm, it was ultimately beneficial because it led to the abolition of slavery. Although I haven't seen any survey data, informal discussions with libertarian intellectuals and activists lead me to believe that this view actually very common in the movement, perhaps more so than either of the others. However, few libertarian Unionists have actually written about the conflict, perhaps because libertarian scholars tend to focus on issues where we diverge from the conventional wisdom of non-libertarians rather than endorse it (Tim Sandefur's article on the subject is an interesting exception). Pro-Union libertarians do, however, differ from many other defenders of the Union cause in so far as most believe that the preservation of the Union was not by itself a sufficient justification for the war, independent of slavery.
II. Condemning the War Without Endorsing the Confederacy.
A second libertarian approach to the Civil War recognizes that the Confederates seceded for the purpose of protecting slavery, and does not defend their actions. But it still holds that the war actually did more harm than good, because slavery might have been abolished soon anyway and the war did not result in anything resembling full equality for blacks. Libertarian historian Jeffrey Rogers Hummel is perhaps the leading modern defender of this view. I disagree with his perspective. But it is not unreasonable. The Civil War resulted in the loss of over 600,000 lives, extensive violations of civil liberties, and enormous destruction. And it is indeed true that blacks had to wait another century before they got full legal quality.
Nonetheless, I believe the war was worth the cost because the abolition of slavery was a tremendous advance even if it fell short of full equality. I am skeptical of claims that slavery would have disappeared quickly even without the war. As Blanks points out, slavery was not on its way out, either economically or politically, and the price of slaves was actually rising – indicating that the market expected the "Peculiar Institution" to last for a long time to come.
III. Pro-Confederate Libertarians.
We now come to those libertarians who actually defend the Confederacy and its "right" to secession, the targets of Blanks' posts. These libertarians argue either that the secession wasn't really about slavery or that the southern states had a right to secede regardless of their reason for doing so.
On the first point, as Blanks emphasizes, the Confederate leaders themselves repeatedly stated that protecting slavery was their principle motivation. This was forcefully articulated at the time by Jefferson Davis, Confederate Vice President Alexander Stephens (who famously called slavery the "cornerstone" of the Confederacy, and the southern state governments' official statements giving their reasons for secession. Modern defenders of the Confederacy cannot get around the fact that the most damning evidence against it comes from the statements of its own leaders.
As for claims that the southern states had a right to secede independent of their motives for doing so, Blanks effectively dismantles this one. Slavery was a far greater violation of libertarian rights than anything that white southerners were suffering at the hands of the federal government in 1861. Even if a majority of the population in some jurisdiction supports secession, libertarians should still oppose if the purpose of secession is to perpetuate and extend a massive violation of libertarian rights. And few institutions violate such rights more blatantly than slavery. I don't agree with all of Blanks' arguments. Unlike him, I think it's far from clear that secession was unconstitutional. But whether constitutional or not, Confederate secession was a great evil. Indeed, if the Constitution did permit secession for the purpose perpetuating slavery, that's more an indictment of the Constitution than a justification of Confederate secession.
IV. Remembering that Blacks Count Too.
I would also add an important point that is overlooked by both Blanks and most modern defenders of the Confederacy: Even if you do endorse any secession that is supported by a majority of the population in a given state, you should still condemn the Confederacy. Southern secession can only be justified on majoritarian grounds if you discount the views of southern blacks. As of 1860, African-Americans constituted about 40% of the population of the states that formed the Confederacy. It's a safe bet that they were overwhelmingly opposed to secession. When you combine this overwhelming black opposition with that of the substantial minority of southern whites who also wanted to stay in the Union, it is highly likely that a majority of southerners in 1861 opposed secession. Once you recognize that blacks count too, it becomes clear that Confederate secession was anti-majoritarian as well as proslavery.
I don't believe that most of today's libertarian defenders of the Confederacy ignore the views of blacks out of racism. They probably do so because they unthinkingly take for granted the laws of the time, which in the South excluded even free blacks from the franchise (as was also true in many northern states). But there is no reason to accept the validity of that exclusion. Indeed, libertarians should be the first to recognize that southern state governments had no right to rule over African-Americans without even the slightest pretense of gaining their consent.
Court Seeks Reargument of Alien Tort Statute Case
This afternoon the Supreme Court asked for supplemental briefing and announced it would hear additional oral arguments next term in Kiobel v. Royal Dutch Petroleum, in which the Court is considering whether foreign nationals may file suit against corporations for alleged human rights abuses in U.S. courts. Kiobel was just argued last week. Lyle Denniston has details on the Court's announcement at SCOTUSBlog.
Accommodations (Religious, Philosophical, and Otherwise), of Employees and Others
The discussion of the Israeli postal workers who are refusing to deliver Bibles led some to bring up the examples of Muslim cab drivers in Minneapolis who don't want to drive passengers who are carrying alcohol, and pharmacy owners and pharmacy employees who do not want to sell drugs that they view as abortion pills. I think these cases are in important ways different, so I thought I'd briefly blog some thoughts on the subject.
1. The value of accommodation: To begin with, I think it is often good to accommodate people who have religious, cultural, or philosophical objections to generally applicable rules. The rules will often have been designed with an eye towards the typical person, for whom the rules are no great burden. A no-headgear rule might be no big deal to most employees, or most people participating in some other activity; but to Orthodox Jews or to Muslim women it might feel like a very great burden indeed. It often makes sense to think about that burden, and to consider the possibility of exempting people from such a burden.
This doesn't tell us that there should be a constitutional right to religious or philosophical exemptions from generally applicable laws (I have argued that there shouldn't be); nor does it tell us whether the government should mandate that private employers and others create such exemptions (as American law does mandate, to a modest extent). And it certainly doesn't mean that such exemptions should always be granted, regardless of the burden they impose on others. It just means that we can't simply assume that such exemptions should always be denied, and that The Rules Must Always Be Followed with no exceptions.
Indeed, in our ordinary lives, we often create such an exemptions with little controversy. If an employee comes to you with a special request for an exemption, you'll probably consider giving it, even without regard to whether the law requires this. For instance, say your business is too small to be covered by religious accommodation requirements, and an employee asks to be excused from a rare situation where he would have to help serve alcohol — for instance, if you're asking some general office assistants to help out with a party for the business's customers. If the employee is asking to be excused just because he doesn't feel like staying late, you might say, "tough luck." But if you sense that it would be mentally burdensome for him to participate, whether because he's Muslim, Methodist, or just staunchly opposed to intoxicating substances (perhaps because of an alcohol-related injury to a close family member), I suspect that you probably wouldn't just say, "no, rules are rules." Instead, you'd consider whether there's some way of making things work; perhaps some other employee will gladly switch this duty for some other. Fortunately, there's often a good deal of room for flexibility.
The same is often true in some government programs and even statutory or constitutional rules — consider the exemption for sacramental wine during Prohibition, or the provision in the Constitution that people could affirm instead of swearing in various contexts, a rule that was created to accommodate some religious groups (such as Quakers) that opposed swearing. Again, this doesn't mean that all accommodation requests should be granted, or that accommodations should be limited to religious objectors; the affirmation option, for instance, benefits atheists as well as Quakers. It just means that requests for accommodations should often be considered seriously.
Sometimes, of course, we might want to reject the requests because of a worry that allowing one request would lead to many more, some insincere and some insincere, and the cost of dealing with the flood of requests — including the upset that will be caused if one exemption is granted but another is denied — would be too great. That is one reason that the Supreme Court, even during the era when it took the view that the Free Exercise Clause mandated many religious exemptions, generally refused to allow religious exemptions from tax laws. But often, especially when the request will be personally costly to the person asking for the request, we can expect that future requests will be rare, and we can save for a later day the question of what to do if they become much more frequent. I suspect that here too our actual practices in our business lives reflect this: We often rightly see little cause to worry much about a flood of exemption requests, for instance when someone asks for a religious exemption from a no-headgear policy, or asks for a short unpaid leave, whether for important secular reasons (e.g., to go to a funeral) or for religious reasons (e.g., to go to some religious festivals).
2. Employer rules vs. governmental rules applicable to everyone: It also seems to me that the case for accommodation is, all else being equal, stronger when the government exercises its sovereign power to constrain our liberty than when the government or a private employer is exercising its power over its employees. When a self-employed cab driver wants to decline to transport a passenger who is visibly carrying alcohol (or when a non-self-employed cab driver wants the same, and his employer has no objection), the driver is basically asking for the same right that most small businesspeople have — the right to choose which behavior to promote (even indirectly) through his actions. An architect who opposes alcohol could refuse to take a job designing a saloon. A restaurant owner could refuse to deliver food to an abortion clinic. A independent contractor gardener who deeply believes in animal rights could refuse to tend plants at a company that sells meat. To be sure, various laws, such as antidiscrimination laws. limit our rights to choose whom to do business with. But that right to choose remains valuable to us; the cab driver is simply asking for the same right.
Now the cab driver and the pharmacy owner is indeed required to have a government-provided license, and the license also gives him some protection from competition. This license might generally justify requiring cab drivers to generally take all comers. (I'm skeptical both of the monopoly licensing system and the take-all-comers rule, but obviously our legal system disagrees.) But I don't think that this licensing and protection from competition should be enough to entirely cancel our sympathy for the driver's or pharmacy owner's claim, especially when the law imposes a far greater felt burden on him than it does on most drivers or pharmacists. Rightly or wrongly, a vast range of businesses and occupations require licenses of this sort: contractors, real estate agents, plumbers, and many more. We should try to minimize the degree to which such licensing systems burden people's freedom, rather than just assuming that once some part of the freedom — the freedom to do business without a license — is lost, other claims of freedom should be rejected, too.
The protection against competition that cab drivers and pharmacists have should indeed heighten our concern for consumers, who might themselves be burdened by a combination of the licensing scheme and the exemptions claimed by those who are licensed. In principles, for instance, we might worry that all cab drivers will refuse to carry passengers who are transporting alcohol, or that the few pharmacists in an area will refuse to stock certain medicines and thus leave consumers unable to get the medicines. We might not worry much about consumers in situations where there is untrammeled competition, if we thinks consumers have no right to force unwilling businesspeople to do business with them. But we might think that, once the government limits consumer choice by limiting competition, the government should try to minimize the burden on consumers that this imposes.
But there are often ways in which consumers can be protected without putting objecting businesspeople to the choice of leaving their occupations or violating their religious or moral codes; and this is especially so because most businesspeople are perfectly happy to take their customers' money, so that only a few people will seek an exemption from the duty to serve customers. Usually the main problem is to minimize the wasted time and effort on customers' part that would happen if they aren't properly informed of who is willing to serve them and who isn't. But, for instance, if taxicabs are allowed to refuse to carry alcohol only if their cabs prominently note the no-alcohol policy, and if the taxicab dispatchers warned the callers of the policy, I suspect the result will be little difficulty for riders and a considerable benefit for drivers.
3. Employees: But when the claim for an exemption comes from an employee — let's talk for now about government employees — who wants to be excused from part of his duties, the employer should be expected to do a good deal less than the government-as-sovereign would. The employee, after all, is asking not just for an exemption from a prohibition but for an exemption from a duty that he is being paid to perform. Sometimes the employer might still be able to easily accommodate the employee; consider the serving alcohol exemption from part 1, or consider a government-owned pharmacy (e.g., inside a county hospital) which always have several pharmacists on duty, and only one of the pharmacists has an objection to dispensing a particular drug. But often the accommodation may be much harder to implement, as with some other pharmacist-employee situations, or as with the Israeli mail carriers. This might mean a good deal of expense to the employer, or a good deal of burden on coworkers or on patrons. In such a situation, the government employer (or a private employer, once the law imposes some duty to accommodate on private employers) should be allowed to tell people that, if they want to be paid, they should do the job they are being paid to do.
Of course, distinctions between employees, government contractors, government licensees, and others aren't always sharp or necessarily dispositive. One could, for instance, treat a government-licensed cab driver — or pharmacist or plumber or real estate agent — as a sort of government employee who is being "hired" to function in an occupation, and who is being "paid" not with a salary but with a license. But it seems to me that the absence of a government paycheck is a pretty important distinction in many of these cases, both in terms of how much the recipient can reasonably be required to give up as a condition of the benefit, and in terms of how much the exemption will interfere with the government function. As I mentioned above, I suspect that a few cab drivers' prominently noted refusal to transport alcohol will do little harm to the effectiveness of the government's transportation policies; among other things, there will generally be many cab drivers who are prepared to drive a particular route at a particular time. But postal carriers' refusal to transport the mail will do a good deal more harm to their government employer's effectiveness, partly because the government — relying on their status as employees, and thus the expectation that each of them will deliver whatever needs delivering — has set things up so that all the mail to a particular building will be delivered by a particular carrier.
4. American law: And, not coincidentally, American law seems to largely track this, at least in many jurisdictions. All states and the federal government offer a considerable range of exemptions from mandates imposed by the government as sovereign. About half the states and the federal government also have general mandates — imposed either by state statute or by the state courts' interpretation of the state constitutional religious freedom provisions — requiring exemptions in such cases, unless denying the exemption is necessary to serve a compelling government interest. But when it comes to employment, either public or private, the law generally requires accommodations only if they impose at most a small cost on an employer.
Again, one can debate which of these rules should be imposed quite the way they have been imposed. (For instance, I generally prefer state statutory exemption regimes, rather than ones implemented under the state constitution, and I'm not sure that any duty to accommodate should be imposed by law on private employers.) But in general, the pattern I describe above seems to be what American law mandates.
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