Eugene Volokh's Blog, page 2733
August 10, 2011
The Ice Cream/Gunpowder Link + Orange Blossom as the Original Ice Cream Flavor + Most Common Vowels in Ice Cream Names
A fascinating and wide-ranging post at the Language of Food (from Stanford linguistics professor Dan Jurafsky. Thanks to Prof. Arnold Zwicky (Language Log) for the pointer.
Search Warrant for Name of the Author of the Renton (Washington) Parody Videos Temporarily Stayed
I blogged about this case last week (Is It a Crime to Publish Parody Videos That Use "Lewd ... Language" Meant to "Embarrass and Emotionally Torment" Police Officers?); yesterday, the judge stayed the search warrant aimed at unmasking the author of the videos, pending a hearing on whether the search warrant should be quashed. [UPDATE: The request to quash the warrant came from lawyer Harish Bharti, who is representing an unidentified client (who might well be the anonymous author of the videos).]
As I argued in my earlier post, under the City Attorney's interpretation of the Washington cyberstalking statute that the videos supposedly violate, that statute violates the First Amendment and is unconstitutionally overbroad on its face; if that's so, then the warrant should indeed be quashed, because it will not reveal evidence of criminal conduct. It will be interesting to see what ultimately happens in court. Thanks to Ed Grinberg for the pointer.
What Does the Mandate Regulate?
Today SCOTUSBlog has posted my contribution to its symposium on "The Constitutionality of the Affordable Care Act." It begins:
The public debate over the constitutionality of the individual mandate tends to focus on whether it is a permissible exercise of the power to "regulate commerce . . . among the several states." This is no surprise. The commerce power is the most used and most expansive federal power. Fights over the scope of the Commerce Clause take place on familiar terrain. In the end, however, the constitutionality of the mandate is likely to turn on the scope of a less explored provision, the Necessary and Proper Clause.
The symposium also features contributions from co-conspirators Ilya Somin and David Kopel. Rumor has it Orin Kerr might be contributing something as well.
My SCOTUSblog Post on the Future of the Individual Mandate Litigation
SCOTUSblog has just posted my contribution to their symposium on the individual mandate litigation. I interpreted the assignment as focusing primarily on the future prospects of the individual mandate challenges, rather than on the question of whether they deserve to win. So I focused primarily on the former question, even though some other participants in the symposium seem to have concentrated more on the latter. For those interested in my take on the normative question, I summarized it here. Here's an excerpt from the SCOTUSblog post:
The Supreme Court may hear at least one of the cases challenging the constitutionality of the Obama health care bill's individual mandate sometime during the next year. If it does, the result will have major implications for our system of constitutional federalism. If the federal government prevails, Congress is likely to have an unlimited power to impose mandates of any kind. If the plaintiffs win, the Court will have reaffirmed the importance of constitutional limits on federal power....
Every judge who has ruled on the issue has recognized that Congress has never previously imposed a comparably sweeping mandate under the Commerce Clause, and that the Supreme Court has never ruled on the issue of whether Congress has a general power to regulate inactivity. Given the deep ideological divisions over the case and the lack of precedent clearly on point, the Court could easily rule either way.
Nonetheless, the federal government probably has a better chance than the plaintiffs. The Court's four most liberal Justices have consistently refused to recognize any meaningful limits on Congress's powers under the Commerce Clause. Thus, the mandate will be upheld if even one of the five conservatives votes in its favor. And the conservatives have often been a fractious bunch in federalism cases....
At the same time, it is also possible that the conservative Justices will be unwilling to uphold the mandate because doing so is likely to give Congress unconstrained authority to impose virtually any other mandate. In the recent case of Bond v. United States, Justice Anthony Kennedy – a key swing voter – emphasized that constitutional constraints on federal power protect "the liberty of the individual" as well as "state sovereignty." If the Court gives Congress unlimited power to impose mandates, that principle will be gutted. Thus, the Justices are likely to uphold the mandate only if they can find some way to do it without giving Congress a blank check to impose future mandates at will. Unconstrained congressional authority to impose mandates also goes against the text and original meaning of the Constitution, a consideration that might sway the originalists on the Court.
SCOTUSlog has also recently published several other contributions to the Symposium, including this one by co-blogger Jonathan Adler, and this one by Cory Andrews of the Washington Legal Foundation, with whom I have worked on several amicus briefs in the individual mandate cases on behalf of WLF, a group of constitutional law scholars, and several members of Congress. Obviously, the symposium also includes various contributions by prominent defenders of the mandate, with more to come. Check it out!
Prof. Lash's Originalist Claims
I learned from Kurt Lash's new article, which makes novel and creative claims about historical materials that are important to a variety of theories of constitutional interpretation. In this post, I will first question some of his originalist conclusions. More importantly, I will then explain why he offers little reason to reject the structural, nonoriginalist account provided by collective action federalism.
I am unpersuaded by several of the conclusions that Prof. Lash draws from his examination of the historical materials.
Regarding the relationship of the Philadelphia Convention to Resolution VI, Prof. Lash makes a persuasive case that the Framers did not intend the resolution to supplant the enumeration of powers in Article I, Section 8. I am, however, unaware of anyone who disagrees with him on this point.
Moreover, I do not think he shows that Resolution VI was merely and literally a placeholder, so that its content is irrelevant to the proper interpretation of the various clauses in Section 8. Prof. Lash himself quotes Madison's reference to Resolution VI during the Convention as a "general principle on which we should act." It seems implausible that Resolution VI could have included absolutely any language at all — even the strong state sovereignty language in the Articles of Confederation — and the result for the proper interpretation of every clause of Section 8 would be the same.
The incorporation episode during the Convention is not as illuminating as Prof. Lash suggests. I do not see how it establishes that the delegates rejected the continuing pertinence of the structural principle expressed in Resolution VI after adopting Section 8.
The episode consisted of one, very brief set of exchanges among only a few of the delegates (one page in Madison's Notes) towards the end of the Convention (September 14), and it occurred during the course of consideration of numerous proposals to amend the constitutional text in various ways on various subjects. Given the context, I am loath to draw strong conclusions one way or the other from this episode.
Moreover, of the few delegates who spoke, Madison's Notes make it difficult to distinguish between (1) delegates who might have wanted to make explicit a power that they thought was already implicit in the other enumerated powers, and (2) delegates who wanted to add the incorporation power to an enumerated list that did not already include it implicitly. Unlike Prof. Lash, I cannot with confidence categorize Madison and Wilson based only on this episode. Prof. Lash apparently reads Wilson as saying that the addition of the power was "necessary" because Section 8 did not already include it. Wilson, however, might have simply meant that it would be "necessary" for Congress to exercise the power "to prevent a State from obstructing the general welfare."
In addition, the vote of the Convention regarding explicit congressional power to establish corporations to build canals does not tell us who voted against the provision based on substantive objections, and who was moved by prudential concerns that reflected the political sensitivity of the broader issue at the time. Rufus King voiced prudential objections.
Finally, even putting aside all of the above, this episode does not show that the Convention rejected the relevance of the structural principle expressed in Resolution VI to subsequent interpretation of the enumerated powers in Section 8. At most, the episode shows that the delegates disagreed about whether the structural principle should be embodied in an enumerated power to charter corporations, either in general or regarding canals in particular. To reject a particular application of a principle at a particular time (for whatever reason) is not to reject the relevance of the principle to a proper understanding of other, accepted applications.
Regarding what Wilson said during the ratifying convention in Pennsylvania, I do not think Prof. Lash has shown that Wilson was referring to Roger Sherman's statement of a collective action principle, as opposed to Resolution VI or Wilson's own generalized understanding of what the clauses of Section 8 accomplish. I do not think Prof. Lash has made this showing for much the same reason that it ultimately would not matter if he had: each formulation is evocative of a distinction between problems that require collective action by states and those that require individual action. Sherman distinguished "the common interests of the Union" and "the general welfare of the United States" (my emphases) from "matters of internal police which respect the government of such States only."
What matters is the structural principle given voice in Resolution VI, not the particular language of Resolution VI itself. The general welfare of the nation is distinct from the particular welfare of a state. General welfare is welfare that the federal government can obtain but the seperate states cannot because of collective action problems.
This is why Wilson's reference to "operations and effects," if that is what he in fact said, is not quite right because he fails to distinguish effects from external effects. In other words, in the recorded version of Wilson's speech that Jack Balkin examines in his Commerce article in the Michigan Law Review and that Prof. Lash questions, Wilson overstates the scope of federal power authorized by Section 8.
In any event, Resolution VI and Wilson's statements during the ratification process play much more modest roles in the theory of collective action federalism than Prof. Lash seems to suggest. Prof. Lash argues in effect that a particular kind of interpretive argument (originalism of one kind or another) is not supported by two pieces of historical evidence. But collective action federalism is a structural, nonoriginalist account, and Prof. Lash offers little reason to reject it.
I so conclude for many reasons, most of which do not concern Resolution VI or Wilson. These include:
(1) the collective action failures that are widely understood to have inspired the Philadelphia Convention;
(2) the content of Resolution VI, which comes amazingly close to describing the key technical characteristic of collective action problems, as well as the Convention's instructions to the Committee of Detail regarding Resolution VI and the lack of debate about the ensuing enumeration;
(3) the relevant statements of nationalist Framers like Madison, Hamilton, and Wilson, the exact timing of which is less important to a structural interpretation than to an originalist one (I am thus unconcerned by Prof. Lash's argument that, even if Prof. Balkin focuses on "the more accurate account of Wilson's speech, it is not the version first published, and widely republished in newspapers around the country");
(4) the reasons the Constitution was ratified in the key states of Virginia and New York, especially fear of collective action failures in future wars with European powers;
(5) the many authorizations to solve collective action problems among the states in the text of Section 8;
(6) subsequent historical developments and mistakes, including the Lochner Court's repeated rejections of collective action reasoning and the post-1937 Court's frequent invocations of it, including during the Rehnquist and early Roberts eras; and
(7) the insights of modern economics regarding the design of a well-functioning federal system.
If I read him correctly, Prof. Lash mischaracterizes collective action federalism as doing a little bit of originalism poorly; as otherwise "adopt[ing] a purely instrumentalist methodology;" and as not "actually invol[ing] an interpretation of the actual text of the Constitution."
Just as I do not recognize Prof. Lash's description of my work with Bob Cooter, so I do not recognize his characterizations of the work of others. Tomorrow, I will offer my understanding of what collective action theorists believe about how to interpret the particular clauses of Article I, Section 8.
James Wilson, Resolution VI and Original Public Meaning
This is my third and final substantive guest-post on my new article, "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8 and recent efforts to use Resolution VI as a foundational principle for construing federal power under Article I, Section 8.
To recap my last post, proponents of Resolution VI claim that the framers intended Article I, Section 8 to enact the principle that Congress have power to legislate in "all cases for the general interests of the Union," where "states are separately incompetent," and where individual legislation in the states interrupted the "harmony of the United States." However, during a portion of the convention debates which occurred after the adoption of Article I, Section 8, James Madison attempted—unsuccessfully—to add congressional power to grant charters of incorporation in cases "where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent." This is a power that literally falls within the scope of Resolution VI. Had Madison understood the convention as having already granted such power through the adoption of Article I, Section 8, his proposal would have been unnecessary.
James Wilson agreed with Madison that the addition of such power was "necessary" despite the adoption of Article I, Section 8, and Wilson expressly distinguished Madison's proposed power from other powers he believed already granted as part of Article I, Section 8. Thus, in what appears to be the only discussion of the principles of Resolution VI that occurred after the adoption of Article I, Section 8, framers like Madison and Wilson assumed Congress had not drafted a text that "enacted" Resolution VI and the convention as a whole rejected an attempt to add power in a case where the national interest was at stake and the states were separately incompetent.
My last post represents an argument against Resolution VI proponent claims of original intent. However, as I explain in my article, there is good reason to reject original intent regardless of what one thinks about the framing debates. Scholars have severely criticized original intent originalism on a variety of methodological and normative grounds. In fact, most mainstream originalists today seek to determine the original public meaning of the text, and not the often secret intentions of the framers.
It is significant, then, that in addition to problematic claims regarding the framers' intent, proponents Resolution VI also claim that framer and future Supreme Court Justice James Wilson publicly declared during the Pennsylvania Ratifying Convention that the framers intended Article I, Section 8 to operationalize the principle of Resolution VI. According to Jack Balkin, James Wilson explained to his Pennsylvania audience that "the purpose of enumeration was not to displace the principle [of Resolution VI] but to enact it."
If true, then this would be evidence that at least one framer believed Resolution VI remained relevant after the adoption of Article I. But more importantly, if Wilson publicly linked Resolution VI to the final draft of the Constitution early in the ratification debates, then this allows Resolution VI proponents to make claims based on the original public understanding of Article I, Section 8, and not just claims about the framers' intentions. In other words, if Wilson was talking about Resolution VI, then this helps to overcome the problem of relying on a non-constitutional text discussed during the secret Philadelphia debates.
It turns out, however, that Wilson's speech does not invoke Resolution VI. Why scholars have mistakenly concluded Wilson was speaking about Resolution VI deserves a far more detailed explanation than I can provide in a single blog post. Again, I encourage those interested in the full argument to read the evidence presented in my article (pp. 12–16, 29–35, in particular). For now, I can only provide a sketch of the full evidence.
Here is the passage in Wilson's speech that scholars have assumed involves a reference to Resolution VI:
"They [the Framers] found themselves embarrassed with another of peculiar delicacy and importance; I mean that of drawing a proper line between the national government and the government of the several states. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care." (emphasis added)
If one believes that Resolution VI was the only "principle" in play during the framing debates, then one might assume Wilson's reference to "this principle" was a reference to Resolution VI. It turns out, however, that other principles were discussed during the framing debates, including one introduced by Roger Sherman that Wilson expressly declared as "better" than Resolution VI. Here is Sherman's proposed "principle" for determining the scope of national and state power:
"To make laws binding on the People of the United States in all cases which may concern the common interests of the Union: but not to interfere with the government of the individual States in any matters of internal police which respect the government of such States only, and wherein the general welfare of the United States is not concerned."
When Wilson first heard Sherman's proposal, he supported it on the ground that it "better express[ed] the general principle" than did Resolution VI. In fact, Sherman's proposal was altogether different in structure and content from Resolution VI. Sherman's principle says nothing about "where the States are separate incompetent" or national "harmony." Instead, Sherman simply divides [1] matters that fall within the power of the government of the United States, from [2] matters that remain within the power of the governments of the states.
Like Sherman's proposal, the principle Wilson invokes in his speech says nothing about Resolution VI and powers where "the states are separate incompetent" or situations where states interrupt "national harmony." Instead, Wilson follows Sherman's approach and simply divides [1] matters that belong to the state governments from [2] matters that belong to the government of the United States. In fact, Wilson's principle is almost exactly the same as Sherman's, with only the subjects (federal and state power) placed in reverse order.
This is what we would expect, of course, from a man who believed that Sherman's approach better described what Congress was trying to do than did Resolution VI. It is also what we would expect from a man who expressly declared during the incorporation debates that Article I, Section 8 had not conferred power to act in a case involving the national interest where the states were "separately incompetent."
Perhaps Wilson's use of Sherman's model represents Wilson's understanding of what the framers were really trying to accomplish. Maybe it was his own idiosyncratic view of how the Constitution ought to be read. Whatever it is, it is not Resolution VI and Wilson does not claim that it is.
Scholars have simply assumed Wilson was referring to Resolution VI, even as they noticed that Wilson's principle seemed somewhat different than Resolution VI (as does Jack Balkin, for example). But not only has Wilson actually invoked a principle he preferred over that of Resolution VI, he has invoked an approach that the framers in the convention affirmatively rejected. Thus, one cannot argue that Wilson's principles are essentially the same as Resolution VI. James Wilson believed there was a difference, as did the framers. In this case, differences matter. The claim that Wilson publicly declared that the framers intended Article I, Section 8 to follow the principle of Resolution VI is simply mistaken.
Finally, Jack Balkin has emphasized the particular words Wilson used in his speech to describe "operations and effects" of national concern. We now know there is no reason to link these words to Resolution VI. But even if viewed as a free-standing principle of federal power in play during the ratification debates, it is not at all clear whether they became part of the public debate. These particular words are included in a version of Wilson's speech reprinted in Elliot's Debates. However, as the newly compiled Documentary History of the Ratification of the Constitution shows, however, this is not the only version of Wilson's speech. In fact, the version of Wilson's speech which was reprinted as a pamphlet and reprinted in numerous newspapers around the country did not include the reference to "operations and effects." The version which includes this particular language was published as a pamphlet months later by one of Wilson's supporters. As far as I can tell, it was not reprinted in any newspaper in the country. Although its publisher claimed this later version was more accurate, we have no way to know whether this is actually true. In fact, given the existence of the two versions, we can no longer be sure what exactly Wilson said during his speech.
In sum, claims that Wilson publicly linked Resolution VI to Article I, Section 8 are not supported by the historical evidence. Wilson said nothing about Resolution VI (in any version of his speech) and his approach mirrored a principle introduced by Roger Sherman—a principle Wilson declared was better than Resolution VI. Finally, there is no evidence that the version of Wilson's speech relied upon by Resolution VI proponents played any role outside the Pennsylvania Convention (and we can't even be sure these were the words he spoke in the convention).
Notice that Wilson's speech is the only evidence offered by Resolution VI proponents that involves public discussion of Resolution VI during the ratification debates. Even if true, this single speech by one framer could never suffice as an argument for original understanding. The fact Wilson's speech refers to a different principle simply removes from the table the only evidence of discussion during the ratification debates currently proffered by supporters of Resolution VI.
There is much more in my article that explores why this odd corner of constitutional history is so important and the significance if the courts were to use Resolution VI as a guide to the construction of Article I, Section 8. But regardless of whether I am right about the implications, arguments in favor of the principle of Resolution VI must rest on their individual merits, and not on claims of original intent and understanding.
August 9, 2011
AP: 4 of 6 Republicans Hold Seats in Wis. Recall; Republicans Retain Control of Wis. Senate
According to the AP, 4 Republican state senators in Wisconsin have been re-elected, while 2 have lost their seats to Democrats. The Republicans thus continue to hold a majority in that chamber of the Wisconsin legislature.
The last race to be called was in the 8th District. Twelve Milwaukee precincts seem to have been withheld for a very long time, leaving open the possibility of the Democrat (Pasch) overtaking the Republican (Darling). But other Wisconsin news outlets have collected results from almost all of the outstanding precincts and Darling's lead is holding up (tip to HuffPo relaying counts of the Patch).
UPDATE (2am ET): All but one of the Milwaukee precincts have now reported and Darling's lead remains substantial. It's over . . . .
Current Controversies Volume on Patriotism
The Current Controversies series has recently published a volume on Patriotism, which includes contributions by Eugene Volokh and myself. Mine is an expansion of this post, which argues that patriotism goes wrong when it leads us to value the nation for its own sake, as opposed to a means to the end of promoting the freedom and happiness of its people. Eugene's chapter argues that patriotism doesn't justify imposing a legal ban on flag burning.
The other contributors include well-known scholars like Michael Kazin, George Kateb, and Thomas Sowell. A complete table of contents is available here.
The Decline of Men or Just the Rise of Women?
Cato Unbound has an interesting symposium on the changing status of men in society, including a lead essay by Kay Hymowitz arguing that men are in decline and "falling behind." The idea that the men are declining is not unique to Hymowitz. Anthropologist Lionel Tiger has a book advancing the same thesis. Other writers have also taken up this mantra.
But the evidence underpinning the case for male decline doesn't add up. Most of it consists of the well-known facts men now have slightly lower levels of educational attainment compared to women, and never-married men trail comparable women in income. However, there is no actual decline in male performance in either field. Rather, what has happened is that women are doing much better than before thanks to economic and social changes that have opened up new opportunities for them. When several European nations lifted legal disabilities imposed on Jews in the 19th century, the percentage of Jews in various occupations and educational institutions rapidly increased, and the percentage of gentiles in the same fields fell. Obviously, gentiles were not "in decline." Rather, Jews were doing better because of the easing of discrimination against them. Much the same can be said of women over the last few decades. On balance, men actually benefit from the rise of women, just as gentiles benefited from that of the Jews. Everyone is better off when society is able to more fully benefit from developing the talents of more of its people.
Nineteenth and early century anti-Semitism flourished in part because many Europeans didn't understand that the economy wasn't a zero-sum game in which gains for Jews can only come at the expense of gentiles. Today's fears that economic gains for women somehow harm men are similarly misplaced. Even if women end up out-earning men (which they are still far from doing), that does not mean that men have been harmed, any more than gentiles suffer because of the much higher average income and educational attainment of Jews.
It's also worth noting that men continue to dominate the highest levels of achievement in many occupations, in part because the variation in male achievement is greater than that among women. Men are more likely to become high school dropouts than women(thereby explaining some of the data cited by Hymowitz), but they are also more likely to be at the top of the class or their profession.
Hymowitz also argues that men have suffered because of the "collapse of marriage norms." However, the data shows that only about 20% of men aged 40–44 have never been married. And even that twenty percent doesn't all consist of people deprived of marriage opportunities by social change. Some men (like some women) simply don't want to be married, and anywhere from 3 to 9 percent of men are gay (gay marriage is a recent phenomenon, and is still available in only a few states). Marriage continues to be available to those men who want it. And despite Hymowitz's concern that men have lost their status as providers for the family, married men who live with their spouses still have incomes about a third higher than those of married women. Whether or not married men should be the primary bread-winners in their families, the majority still are.
Hymowitz does identify two genuine areas of male decline. It is certainly true, that men have suffered a relative loss from the diminishing importance of occupations where physical strength is a key job qualification. On balance, however, men — like women — have benefited enormously form the rise of modern technology that has displaced work previously performed by human brawn. It has made an enormous range of goods more readily available to a wide range of people at lower prices. Men who rely on physical strength to make a living were relatively more in demand fifty years ago. But their overall standard of living was far lower than today.
Hymowitz is on firmer ground in pointing to the extremely low marriage rates and high rates of single-parenthood among poor African-Americans and Hispanics. This is a genuine social tragedy. But it has little to do with any broader decline of the male gender. Rather, it is in large part caused by the War on Drugs, which imprisons a high percentage of young inner city males, thereby making family formation extremely difficult. The best way to begin to restore family values in poor minority communities is to end the War on Drugs. That's likely to be a lot more helpful than worrying about the supposed decline of males.
UPDATE: I should note that Hymowitz doesn't, in so many words, say that men are in decline, merely that they are "falling behind." That phrasing is consistent with a view that men are better off than before, but merely haven't made as many gains as women have in recent years. Still, it's hard to justify concern about men "falling behind" unless there is some actual harm to men involved, as opposed to merely having slightly lower educational attainment (and among the never-married, slightly lower income) than women.
The Decline of Men, or Just the Rise of Women?
Cato Unbound has an interesting symposium on the changing status of men in society, including a lead essay by Kay Hymowitz arguing that men are in decline and "falling behind." The idea that the men are declining is not unique to Hymowitz. Anthropologist Lionel Tiger hasa book arguing the same thesis. Other writers have also taken up this mantra.
But the evidence underpinning the case for male decline doesn't add up. Most of it consists of the well-known facts men now have slightly lower levels of educational attainment compared to women, and never-married men trail comparable women in income. However, there is no actual decline in male performance in either field. Rather, what has happened is that women are doing much better than before thanks to economic and social changes that have opened up new opportunities for them. When several European nations lifted legal disabilities imposed on Jews in the 19th century, the percentage of Jews in various occupations and educational institutions rapidly increased, and the percentage of gentiles in the same fields fell. Obviously, gentiles were not "in decline." Rather, Jews were doing better because of the easing of discrimination against them. Much the same can be said of women over the last few decades. On balance, men actually benefit from the rise of women, just as gentiles benefited from that of the Jews. Everyone is better off when society is able to more fully benefit from developing the talents of more of its people. Nineteenth and early century anti-Semitism flourished in part because many Europeans didn't understand that the economy wasn't a zero-sum game in which gains for Jews can only come at the expense of gentiles. Today's fears that economic gains for women somehow harm men are similarly misplaced. Even if women end up out-earning men (which they are still far from doing), that does not mean that men are somehow harmed, any more than gentiles suffer because of the much higher average income and educational attainment of Jews.
It's also worth noting that men continue to dominate the highest levels of achievement in many occupations, in part because the variation in male achievement is greater than that among women. Men are more likely to become high school dropouts than women(thereby explaining some of the data cited by Hymowitz), but they are also more likely to be at the top of the class or their profession.
Hymowitz also argues that men have suffered because of the "collapse of marriage norms." However, the data shows that only about 20% of men aged 40–44 have never been married. And even that twenty percent doesn't all consist of people deprived of marriage opportunities by social change. Some men (like some women) simply don't want to be married, and anywhere from 3 to 9 percent of men are gay (gay marriage is a recent phenomenon, and is still available in only a few states). Marriage continues to be available to those men who want it. And despite Hymowitz's concern that men have lost their status as providers for the family, married men who live with their spouses still have incomes about a third higher than those of married women. Whether or not married men should be the primary bread-winners in their families, the majority still are.
Hymowitz does identify two genuine areas of male decline. It is certainly true, that men have suffered a relative loss from the diminishing importance of occupations where physical strength is a key job qualification. On balance, however, men — like women — have benefited enormously form the rise of modern technology that has displaced work previously performed by human brawn. It has made an enormous range of goods more readily available to a wide range of people at lower prices. Men who rely on physical strength to make a living were relatively more in demand fifty years ago. But their overall standard of living was far lower than today.
Hymowitz is on firmer ground in pointing to the extremely low marriage rates and high rates of single-parenthood among poor African-Americans and Hispanics. This is a genuine social tragedy. But it has little to do with any broader decline of the male gender. Rather, it is in large part caused by the War on Drugs, which imprisons a high percentage of young inner city males, thereby making family formation extremely difficult. The best way to begin to restore family values in poor minority communities is to end the War on Drugs. That's likely to be a lot more helpful than worrying about the supposed decline of males.
UPDATE: I should note that Hymowitz doesn't, in so many words, say that men are in decline, merely that they are "falling behind." That phrasing is consistent with a view that men are better off than before, but merely haven't made as many gains as women have in recent years. Still, it's hard to justify concern about men "falling behind" unless there is some actual harm to men involved, as opposed to merely having slightly lower educational attainment (and among the never-married, slightly lower income) than women.
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