Eugene Volokh's Blog, page 2639
January 5, 2012
Are State Court Immunities for Fourth Amendment Torts Unconstitutional?
In a response to my recent post, Originalism and Civil Damages for Fourth Amendment Violations, Michael Ramsey argues at The Originalism Blog that there is a way to square originalist opposition to the exclusionary rule with originalist embrace of doctrines cutting back on Fourth Amendment civil remedies. The basic idea is that the civil causes of action such as Bivens and Section 1983 that the Court often interprets are not the true descendants of the civil causes of actions at common law, but rather are special federal causes of action that exist in addition to those remedies. At common law, the law of search and seizure was a defense to a tort suit. If the King's officials entered a home with a warrant, the homeowner could sue for trespass, and the valid warrant would serve as an affirmative defense. Ramsey argues that Section 1983 and Bivens are different causes of action that go beyond this role:
Bivens claimed a basis in the Constitution, but it didn't arise from the Constitution's original meaning; an originalist would more likely think of Bivens as a creation of federal common law (which doesn't necessarily mean it was illegitimate, just that it wasn't constitutionally required). That explains, though, why the Court in cases like Anderson felt free to engage in what was (as Professor Kerr suggests) basically common law rulemaking rather than originalism. It was common law rulemaking, because all of Bivens, from which Anderson arose, is sub-constitutional federal common law.
It's important to distinguish Anderson from two other sorts of suits for Fourth Amendment violations: (1) Fourth Amendment (really, Fourteenth Amendment) claims against state and local officials brought under the federal statute 42 U.S.C. 1983 (Section 1983 claims), and (2) state law claims (e.g., for trespass or battery) brought against federal, state or local officers. Neither of these is a constitutional claim and so they don't raise issues of constitutional originalism.
Under Section 1983, courts have found implied qualified immunity (or in some situations absolute immunity) as a matter of statutory interpretation – perhaps wrongly, but that's not of constitutional concern. As to state law claims, I would think federal courts couldn't impose requirements like qualified immunity (whether Congress could is a different question). But states aren't obligated to allow such claims at all, so they have latitude to impose such limitations themselves. The only place in this field that I know of where federal courts are creating non-statutory federal immunities is in Bivens claims (like Anderson). But they are doing it as a matter of common law, not constitutional law.
I really like this argument, although it has a fascinating implication: It suggests that existing immunity doctrines for state law tort suits against government officials may be unconstitutional, as they impermissibly fall below the floor of the original Fourth Amendment. By way of context, it is common for state tort law to have created a form of qualified immunity that applies when state officials are sued in state court for conduct undertaken as part of their official duties. Further, federal officers are protected from state tort causes of action for conduct in the course of their official duties by the Westfall Act. If Professor Ramsey is right, however, an originalist might conclude that these doctrines are unconstitutional. The state tort law causes of action must be preserved without immunity doctrines because they are the lineal descendants of the common law causes of action for tort in which common law search and seizure questions could be raised by the officers as an affirmative defense.
Santorum: "States Do Not Have the Right to Do Wrong"
The WSJ Law Blog reports on comments by former Senator Rick Santorum (unearthed at RedState) on federalism and the authority of different states to adopt different policies on moral questions.
I'm a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.
Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won't get involved in that.
I will get involved in that because the states, as a president I will get involved because the states don't have a right to undermine the basic fundamental values that hold this country together. America is an ideal. It's not just a constitution, it is an ideal. It's a set of morals and principles that were established in that declaration, and states don't have the right, just like they didn't have the right to do slavery.
If Senator Santorum is a "strong supporter of the 10th amendment," he might want to read it, as it seems to say precisely what he denies.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Constitution only prohibits states from doing those things the Constitution prohibits, and the federal government may only constrain state autonomy pursuant to those powers delegated to the federal government. Santorum may think same-sex marriage is wrong, but nothing in the Constitution prevents states from recognizing same-sex marriage nor does anything in the Constitution authorize the federal government to stop states from doing so.
The reference to Lincoln is also interesting, and does not exactly support Santorum's claim that "states don't have a right to undermine the basic fundamental values" of the nation. Contrary to Santorum's suggestion, states did have the legal authority to permit slavery prior to adoption of the Thirteenth Amendment (which was adopted, incidentally, well after Lincoln's death). The Emancipation Proclamation, issued pursuant to the President's War Powers, only applied in those states that had seceded. The federal government had the authority to limit slavery, such as by ending the slave trade or (prior to Dred Scott) prohibiting slavery in federal territories, but states retained the authority to "do wrong."
A more charitable interpretation of Santorum's remarks would be that there is nothing in the 10th Amendment that would prevent a constitutional amendment to prohibit gay marriage. That would be true, but trivially so. There is nothing in the Constitution that prevents the adoption of additional amendments on anything (with one exception still relevant today). But this only makes the point. Were a constitutional amendment adopted prohibiting same-sex marriage, then states would be specifically prohibited from recognizing such marriages by the Constitution, not by some conception of America's "moral enterprise" or the "basic fundamental values" of the nation.
"Hooray for the Sun God, He Sure Is a Fun God, Ra Ra Ra"
Today is Perihelion Day, the day that the earth is closest to the Sun — and by quite a bit, 3% closer than it will be 6 months from now, at aphelion. Weather patterns are much less affected by this than they are by the tilt of the Earth's axis, but, hey, being the closest we get to the Great Bringer of Energy should count for something.
January 4, 2012
Motion for New Trial in Obsidian Finance Group, LLC v. Cox
Our local counsel Benjamin Souede (Angeli Law Group LLC) and I have just filed a motion for new trial in Obsidian Finance Group, LLC v. Cox. As you may recall, the Nov. 30 opinion in that case concluded, among other things, that only members of the institutional media are entitled to certain First Amendment libel law protections. The motion for new trial argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media. Here is Part I.A of our memorandum in support of the motion:
Even if plaintiffs were not public figures, defendant was still entitled to the protections of Gertz v. Robert Welch, Inc.
The Supreme Court has held that the First Amendment applies equally to the institutional press and to others who speak to the public: "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. FEC, 130 S. Ct. 876, 905 (2010) (internal quotation marks omitted). In support of this holding, the Court favorably quoted five Justices' opinions in a libel case — Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting), and id. at 773 (White, J., concurring in judgment) — which expressly concluded that "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities," id. at 784 (a view expressly approved by Justice White, id. at 773). And the Court in Citizens United went on to specifically mention that its "'reject[ion]'" of any greater protection for the institutional press over other speakers stemmed partly from the realities of the Internet age: "With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred." 130 S. Ct. at 905–06.
Indeed, the principle that the institutional press and others who speak to the public have the same First Amendment rights has been applied by the Court in case after case since the 1930s. See, e.g., Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (stating that the freedom of the press "embraces pamphlets and leaflets" as well as "newspapers and periodicals," and indeed "comprehends every sort of publication which affords a vehicle of information and opinion"); New York Times Co. v. Sullivan, 376 U.S. 254, 265–66 (1964) (applying the same First Amendment protection to the newspaper defendant and to the non-media defendants who placed an advertisement in the newspaper); Garrison v. Louisiana, 379 U.S. 64 (1964) (applying the rule of New York Times Co. v. Sullivan to a speaker who was not a member of the institutional press); Henry v. Collins, 380 U.S. 356, 357–58 (1965) (same, where the speaker was an arrestee who conveyed statements to the sheriff and to wire services alleging that his arrest stemmed from a "diabolical plot," Henry v. Collins, 158 So.2d 28, 31 (Miss. 1963)); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 782 n.18 (1978) (rejecting the "suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by [non-institutional-press businesses]"); Cohen v. Cowles Media Co., 501 U.S. 663, 669–70 (1991) (concluding that the press gets no special immunity from laws that apply to others, including laws — such as copyright law — that target communication); Bartnicki v. Vopper, 532 U.S. 514, 525 & n.8 (2001) (concluding that, in deciding whether defendants could be held liable under statutes banning the redistribution of illegally intercepted telephone conversations, "we draw no distinction between the media respondents and [the non-institutional-media respondent]," and citing New York Times and First Nat'l Bank of Boston as support for that conclusion).
All the federal circuits that have considered the question have likewise held that the First Amendment defamation rules apply equally to the institutional press and to others who speak to the public. Flamm v. Am. Ass'n of Univ. Women, 201 F.3d 144, 149 (2d Cir. 2000); Avins v. White, 627 F.2d 637, 649 (3d Cir. 1980); Snyder v. Phelps, 580 F.3d 206, 219 n.13 (4th Cir. 2009), aff'd, 131 S. Ct. 1207 (2011); In re IBP Confidential Bus. Documents Litig., 797 F.2d 632, 642 (8th Cir. 1986); Garcia v. Bd. of Educ., 777 F.2d 1403, 1410 (10th Cir. 1985); Davis v. Schuchat, 510 F.2d 731, 734 n.3 (D.C. Cir. 1975). As the Second Circuit put it in Flamm, "a distinction drawn according to whether the defendant is a member of the media or not is untenable," even in private-figure cases. 201 F.3d at 149. And while the Ninth Circuit has not specifically discussed the question, it has indeed cited Gertz even where a non-institutional-press speaker was involved. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 694 n.4 (9th Cir. 1998) (citing Gertz for the proposition that a "private person who is allegedly defamed" must show "that the defamation was due to the negligence of the defendant," in a case where the defendant was not a media organization).
Moreover, the Ninth Circuit's reasoning with regard to the First Amendment newsgatherer's privilege is instructive for First Amendment cases more generally. In Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993), the Ninth Circuit confronted the question whether the newsgatherer's privilege applies only to the institutional press or also extends to book authors. Plaintiffs argued that a person who was writing a book "has no standing to invoke the journalist's privilege because book authors are not members of the institutionalized print or broadcast media." Id. at 1293.
But the Ninth Circuit expressly rejected that view. It found "persuasive" "the Second Circuit's reasoning" that "it makes no difference whether '[t]he intended manner of dissemination [was] by newspaper, magazine, book, public or private broadcast medium, [or] handbill' because '"[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion."'" Id. (alterations in original) (quoting von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987), which in turn quoted Lovell v. City of Griffin, 303 U.S. 444, 452 (1938)). And the Ninth Circuit concluded that "[h]ence, the critical question for deciding whether a person may invoke the journalist's privilege is whether she is gathering news for dissemination to the public," id., not whether she is working for the institutional media.
The same reasoning applies to the First Amendment defamation law rules, which are even more clearly secured by First Amendment precedents than are the First Amendment journalist privilege rules. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 531–32 (7th Cir. 2003) (taking the view that the Supreme Court's First Amendment precedents do not in fact recognize a newsgatherer's privilege). Anyone who — like defendant — is disseminating material to the public is fully protected by the First Amendment precedents, whether or not she is a "member[] of the institutionalized print or broadcast media."
Moreover, the Supreme Court cases cited above did not turn on whether the defendants were trained as journalists, were affiliated with news entities, engaged in fact-checking or editing, disclosed conflicts of interest, kept careful notes, promised confidentiality, went beyond just assembling others' writings, or tried to get both sides of a story. But see Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334, *5 (D. Or. Nov. 30, 2011) (concluding that the defendant was not protected by Gertz because "[d]efendant fails to bring forth any evidence suggestive of her status as a journalist," and that, "[f]or example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting 'the other side' to get both sides of a story"). The First Amendment fully protects the partisan polemicists in Citizens United v. FEC, the political activist in Bartnicki v. Vopper, the self-interested bank in First Nat'l Bank of Boston v. Bellotti, the disgruntled defendant in Henry v. Collins, the elected district attorney in Garrison, the activists in New York Times Co. v. Sullivan, and the Jehovah's Witness pamphleteers in Lovell v. City of Griffin. It equally fully protects defendant.
In footnotes from a few cases from 1979 to 1990, the Court did leave open the possibility that some of its First Amendment defamation rules would only apply to the institutional press. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 n.6 (1990). And a few other courts, including the Oregon Supreme Court, expressly held that such First Amendment defamation rules, and especially the Gertz v. Robert Welch protections, apply only to the institutional press. See, e.g., Wheeler v. Green, 593 P.2d 777, 784–85 (Or. 1979).
But while the Oregon Supreme Court's decision establishes what Oregon state libel law is, it is the judgments of the United States Supreme Court that are controlling on the First Amendment question. The United States Supreme Court has never held that the institutional press enjoys such extra rights. All the federal courts of appeals that have considered this question have specifically held that the institutional press lacks any such extra rights. And the Supreme Court's decision in Citizens United expressly closed the door that the earlier footnotes left open, making clear that a speaker's First Amendment rights do not turn on whether she is a member of the institutional press.
"Does the First Amendment Protect Your Right to Speak for a Living?"
An interesting National Law Journal op-ed from Clark Neily and Paul Sherman of the Institute for Justice, about a case of theirs, Locke v. Shore:
[T]he U.S. Court of Appeals for the 11th Circuit boldly declared last March that the regulation of "professionals' ... direct, personalized speech with clients" received no First Amendment scrutiny whatsoever.
Fortunately, that aberrant holding may not stand much longer. This Friday, the U.S. Supreme Court will meet to decide whether to review the 11th Circuit's ruling. If it takes the case — Locke v. Shore — it will be the Court's first opportunity in 25 years to provide much-needed guidance on the First Amendment status of "occupational speech," a murky area of the law that has grown increasingly important as more and more people earn their living by selling their speech.
Locke v. Shore is a challenge to a Florida law that requires interior designers to be licensed by the government before they may work in a commercial setting. The plaintiffs are three interior designers and the National Federation of Independent Business, some of whose members wish to engage in speech that Florida has broadly defined as the "practice of interior design."
Florida is one of only three states in the nation to license the practice of interior design, and the burdens Florida's law imposes on would-be designers are extraordinary, particularly in light of the fact that 47 states see no need to license them and have had no problems as a result. Acquiring an interior design license takes years and can cost tens of thousands of dollars. To be eligible for licensure, an applicant must first complete a combined six years of post-secondary education and apprenticeship under a state-licensed interior designer and pass a state-mandated exam administered by a private testing body.
Viewed through a First Amendment lens, the law is clearly unconstitutional. Virtually everything an interior designer does is speech, from consulting with clients regarding their personal goals and tastes, to drawing up space plans, to offering advice about the selection and placement of fixtures, finishes and furnishings. The Supreme Court has repeatedly held that all of these kinds of activities constitute "speech" within the meaning of the First Amendment. Weighed against the immense burdens Florida's interior design law imposes on this speech is an utter dearth of evidence regarding the law's supposed benefits to the public. Indeed, attorneys for the state stipulated during the litigation they had no evidence that the unlicensed practice of interior design — which is the norm in 47 states — poses any bona fide threat to the public, or that Florida's licensing regime had benefited the public in any demonstrable way....
I was glad to have worked on Rob Kry's amicus brief in this case on behalf of various industry groups.
Rick Santorum's Army of Celibates
Since Rick Santorum's unexpected success, his extreme social conservatism has gotten a lot of attention. In some cases, it goes beyond what even most conservative Republicans would be willing to support. My personal favorite extreme Santorum quote hasn't yet gotten as much play as some of the others.
In a September GOP debate, Santorum responded to a question about his position on the repeal of Don't Ask, Don't Tell by saying that "any type of sexual activity has absolutely no place in the military." Perhaps Santorum merely meant that military personnel should not be having sex while on duty. But if that's the case, no one disagrees with him, including supporters of the repeal of DADT. Getting rid of DADT doesn't change regulations forbidding sexual behavior that interferes with the performance of duty. The more natural reading of Santorum's quote is that military personnel should be forbidden to engage in "sexual activity" of any kind for as long as they are in the armed forces. If that's the case, only celibates could serve in the military.
It's possible that Santorum simply misspoke. But when the moderator asked him to explain his position further, he actually dug the hole deeper:
When moderator Megyn Kelly pressed him on what he would do as President, he fired back, "We are playing social experimentation with our military right now and that's tragic...going forward we would reinstitute that policy if Rick Santorum was president, period."
Santorum acknowledged that he couldn't do much about those men and women currently serving in the military that have admitted to being gay, but concluded by saying, "Sex is not an issue, it should not be an issue, leave it alone and keep it to yourself whether you're a homosexual or a heterosexual."
In Santorum's army, not only would gays be required to keep their sexual orientation secret, but so would heterosexuals. An equal-opportunity closet for all! The problem, of course, is that it's very difficult to keep your orientation completely secret from long-term coworkers. People naturally mention their spouses, significant others, and so on, in casual conversation. If you wear a wedding ring or have a photo of your spouse on your desk, that might also be an indication of your sexual orientation. As a practical matter, you would probably have to be either celibate or extremely secretive to be safe from punishment under Santorum's rule.
I can understand, though I don't agree with, people who claim that DADT must be restored in order to promote unit cohesion. But Santorum's prudery goes way beyond that.
I suspect that Santorum may not have grasped the implications of what he was saying. If he thought about it more carefully, he might well realize that forbidding all "sexual activity" by military personnel is likely to destroy the armed forces by making it nearly impossible to attract the number of capable volunteers we need to staff the military. Unless he intends to cut the military far more than even Ron Paul, that's probably not what Santorum really wants. If Santorum wins the presidency, I doubt that he will actually try to implement this policy, if only because it would be a public relations disaster. Even so, it was a foolish and revealing statement.
A Larry Ribstein Story
I was out of the country and computer-less when my former colleague Larry Ribstein died in late December, so I didn't have the chance to add to the many fine tributes to Larry that various bloggers contributed.
But I did want to add one thought. When I think of Larry, I think of how everyone respected his judgment. This primarily manifested itself in law school appointments matters but went well beyond that.
To take an extreme example, I remember that in 1998 or so, well before the Virginia Square area where George Mason is located experienced its current development boom, I expressed an interest in a Latin American restaurant across the street from the law school. I pointed out to some senior colleagues that it was the closest restaurant to the law school, but no one on the faculty ever seemed to go there. "Oh, that place?", a colleague replied. "Larry went there about ten years ago, and said it wasn't good, so no one has gone there since."
Georgia Administrative Law Judge Allows Case Challenging President Obama's Qualification to Go Forward
That's what seems to have happened in Farrar v. Obama (Ga. Office of State Admin. Hearings Jan. 3, 2012). Plaintiffs are arguing that President Obama should not be listed on the Georgia ballot because (1) "[e]very candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought," and (2) President Obama is not a natural-born citizen because his father was not a U.S. citizen at the time of the President's birth. A Georgia statute expressly allows any eligible elector to challenge any candidate's qualifications, and that's what the plaintiffs are doing.
Similar challenges have generally been rejected on procedural grounds, such as on the grounds that plaintiffs lack standing to sue because they have no greater stake in the matter than any other citizen. Generally speaking, federal courts have concluded that in such cases where the plaintiff doesn't have a particularized stake in the matter, the resolution even of constitutional controversies should be left to the political process and not to courts. But because this is filed under state law, state standing law governs, and many states do not impose the same standing requirements as federal courts do. So the judge in this case denied the President's motion to dismiss. (You can read for yourself the President's motion to dismiss, and the plaintiffs' response.)
My view, though not as one who is an expert on the subject, is that the plaintiffs' legal claims are not sound as a matter of the merits. First, "natural-born citizen" means, roughly, "citizen at birth"; citizens come in two kinds, natural-born and naturalized. Second, when the Fourteenth Amendment provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States," that means that all persons born in the United States are natural-born citizens (setting aside those not "subject to the jurisdiction" of the United States, a very small category that may cover children of diplomats and the like, but surely doesn't cover President Obama, who, like nearly everyone else in the U.S., was subject to its jurisdiction).
But it will be interesting to see to see what the Georgia legal system does with this. As best I can tell from a quick glance of the statute, the administrative law judge is supposed to make findings and report them to the Georgia Secretary of State; the Georgia Secretary of State will then make the decision, which can then be appealed to Georgia trial court and then from there on up through the Georgia appellate system. And, though I don't know much about the Georgia legal system, I suppose that it's possible that the administrative judge's denial of the motion to dismiss could be reversed even before a judgment on the merits, for instance through some sort of mandamus procedure. I'd love to hear what those expert in Georgia administrative procedure, or Georgia election law, can say about this.
Do Bloggers Dream of ... 2012 Version
A late Happy New Year to the Volokh Conspiracy and all its readers. I'd like to thank Eugene for the opportunity he extended me a couple of years to join his merry band; I've found it stimulating and intellectually exciting, and I look forward to blogging in the coming year. I'm grateful to him. Having a little down time on a plane ride to California, I thought I'd think aloud a bit about blogging topics I might take up this year. (This is idly dreaming, not promising.)
One is a continuation of blogging I've always done on international law, institutions, and politics, ranging from national security to international organizations. I'll continue blogging on the interrelationships between drone technology, targeted killing, and the future regulation of covert action (loosely speaking). But I plan to expand to include more writing around the more long-run of autonomous weapons systems and battlefield robotics. These topics track academic and policy writing projects in which I'm engaged already. Robotics and the law generally has caught my interest in a big way, and I plan to post on different ways in which areas and issues of law intersect with the development of robotics in ordinary life. In this I hope to highlight the work of others in this emerging field, while asking what robotics and the law will gradually come to mean.
My short book on US-UN relations, Living with the UN: American Responsibilities and International Order, is in final production and will appear in the next couple of months (yes, I know I've said this before, but at this point, it's down to settling on whether to have jacket blurbs or not). My hope is that it will help inform at least slightly debate over international relations and law in the presidential election — to be sure, mostly as the Republicans would see things, but with observations that I hope would be relevant to any US policy official dealing with the institutional UN. It's quite true that I imagine John Bolton would find it more persuasive than Susan Rice, but I think it has relevance in a world in which new great power relations and the rise of China are re-shaping many things. (Note to teachers of international organizations, IR, international politics, international law, etc., this modestly priced book from Hoover Press would make a great contrarian addition to your syllabus; you are likely to find it very wrong but, I hope, shrewdly so. It's not law, but policy, and easily readable at the general reader and undergraduate levels. I'm not writing for international law professors.)
As a teacher of international economic law classes, as well as the co-author in a book project on financial regulation reform, I will be blogging more often than I have in the last year about financial regulation. My co-authored book project is aimed at a very particular level and discussion. Not offering a body of substantive prescriptions for regulation, category by category, or a topic by topic critique of Dodd-Frank — both of these have been done, very effectively. But instead heuristics for prudential regulators seeking to be, well, prudent.
But I also intend to use blog posts here at Volokh this year to explore some new or lightly touched-on areas. One of these is to continue and deepen the discussion of higher education and legal education, their business models and their reform in both their economic structures and curricular forms. I want to push this discussion to include something I think of great importance, and relatively neglected — the defense of the study of the traditional humanities, as well as a certain model of higher education that would require, above all, reform to the admissions process. This discussion is informed by a more abstract discussion that, again, I've raised occasionally here but want to pursue on its own — the theory of elites in a mass democratic society, and particularly the version of it referred to as "New Class" theory. It is social theory, unapologetically so, and one that raises the question of social theory as such, and critique of the peculiar tendency of both rationalist economics and behavioral economics to ignore the irreducibility of social and cultural structures — even "institutions" is frankly too contingent a term — and to account for them as such.
These latter topics have interested me for a very long time, and I have an idea — perhaps stretching into 2013 — to play with new publishing forms through e-books and Kindle. I think I'd like to experiment with taking some of my blogging on these latter topics — social theory, elites, the New Class, perhaps framed around the problems of higher education — and put together a short Kindle book, and see how that new platform works.
Well. That's a lot, much more than I'll manage to do, and I'm spending lots of time working on pedagogy for my courses, even ones I have taught for many years. But I'm going to try and do some more culture blogging — Baroque and early music, cello, books, and culture. Possibly even a return to Stendhal.
Meanwhile, however, we are about to pass over the White Mountain, in the White-Inyo Mountains that form the eastern wall of the Owens Valley, a peak only 200 or so feet below the top of Whitney across the valley in the Sierra Nevada. These are my favorite places in all the world — even at 38,000 feet, sacred air space. So, passing over a short range in the Sierras called the Inconsolable Mountains, Anderson is at some very pagan prayer.
Claremont Review of Books Discussion of Lochner
Two issues ago, the Claremont Review of Books published Richard Epstein's review of my book, Rehabilitating Lochner. In the next issue, two conservative readers criticized Epstein's review for endorsing Lochner. Claremont asked Epstein and me to respond. Claremont has now posted the letters to the editor and the responses here.
My response focuses not on whether Lochner was right or wrong (I take no position on the issue), but on taking issue with some of the statements and assumptions made in the letters–statements and assumptions that reflect longstanding conservative propaganda points in debates over the Fourteenth Amendment, but that rely on myths inherited from Progressive jurists.
I conclude that
there are quite reasonable arguments that liberty of contract, per se, is not protected by the Due Process Clause. Even if it is so protected, one can reasonably argue that the Lochner Court should have followed Justice Harlan's dissent and exhibited greater deference to the judgment of the New York legislature. For conservative constitutionalists to make such determinations, however, requires a careful study of the relevant historical and legal materials free from the baggage of the tendentious, politically motivated accounts of Progressives, New Dealers, and their successors on the Left and, surprisingly, the Right.
Claremont's website doesn't have a comment feature, but you can contribute to the debate in the comments below.
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