Eugene Volokh's Blog, page 2747
July 18, 2011
Nine and a Half Amendments in Some Copies of the Bill of Rights?
I enjoy reading the political campaign commentary of Jim Geraghty of National Review, as well as his daily Morning Jolt email newsletter (available for free email subscription). Today, the first part of the Morning Jolt concerned right blogospheric reaction to Republican presidential candidate Herman Cain's comments about Muslims and religious freedom on Fox News Sunday yesterday. I heard the interview live as Chris Wallace pressed him hard on this point and I have admit I taken aback at Cain's understanding of the First Amendment. (Although he can be annoying, I find Wallace to be a very tough interviewer.) First, you should watch the exchange in its entirety so you can see that his remarks are not being taken out of context. Wallace gave him every opportunity to explain himself fully.
I don't think Jim will mind if I reproduced his entry here, as an inducement for those who may wish to subscribe.
Nine and a Half Amendments in Some Copies of the Bill of Rights?Herman Cain says voters across the country should have the right to prevent Muslims from building mosques in their communities.
In an exchange on "Fox News Sunday," the Republican presidential contender said that he sided with some in a town near Nashville who were trying to prevent Muslims from worshiping in their community.
"Our Constitution guarantees the separation of church and state," he said. "Islam combines church and state. They're using the church part of our First Amendment to infuse their morals in that community, and the people of that community do not like it. They disagree with it."
Asked by host Chris Wallace if any community could ban a mosque if it wanted to, Cain said: "They have a right to do that." Cain, an African-American who grew up during the civil rights era, claimed he was not discriminating against Muslims. He said it was "totally different" than the fight for racial equality because there were laws prohibiting blacks from advancing.
At Weasel Zippers, the first reaction is, "The inevitable CAIR meltdown in 3 . . . 2 . . . 1."
But it's not only CAIR who cares. At Ace of Spades, contributor Drew M. is no longer a fan of Cain in any way, shape, or form:
This guy is not longer a joke, he's simply despicable. Chris Wallace asked Herman Cain about a mosque being built in Murfreesboro, Tennessee. After arguing that Islam doesn't qualify as a religion or something under the 1st Amendment, they got to the heart of the matter . . . . Cain has a rather convoluted understanding of the US Constitution, at least when it comes to it's applicability to Muslims in this country .I didn't like John McCain's attempts to rewrite the 1st Amendment through campaign finance reform laws and I don't like candidates for President like Cain who think some people may only build houses of worship at the sufferance of their fellow citizens.
Yes, mosques must follow the same laws and regulations as any other religion nor should they be granted any special consideration because in some areas Islam is 'the de facto state religion'. But the wholesale banning of them because people don't like Muslims or what they believe in? I'll stand with the Constitution.
Guys like Cain profess to revere the US Constitution yet they are strangely willing to ignore it when it either suits their personal beliefs or political needs. Personally, I'd prefer to live the selective and creative interpretations of the plain meaning of those indecipherable old words to liberals.
At Outside the Beltway, Cain's comments prompt Doug Mataconis to dismiss him from serious consideration:
We have freedom of religion, Cain is saying, but people should have the right to ban your religious practices if they don't like you. The Herman Cain boomlet is dying, because its becoming clear that everything that comes out of his mouth is utter nonsense.The answer is messy, as is the issue. Cain's point that Islam, in general, has never made its peace with the concept of the separation of church and state. (Turkey would be a notable exception, but there Ataturk had a long Turkish cultural identity — perhaps even cultural chauvinism — separate from Islam to root his concept of a democratic republic.)
In the comments over at Ace of Spades, a commenter disagrees with Drew and posits, "Islam is not a religion in the sense of religions protected by the Constitution, but is a geopolitical movement." If that is true — and there will be quite a few Muslims baffled to hear that their beliefs are not a religion — treating Islam as a non-religion will require the government to take a much more restrictive view of what constitutes a "religion" and enjoys the constitutional rights associated with that. To take one example, the Department of Veterans Affairs will permit headstones to feature, besides the better-known religious symbols, the Buddhist Wheel of Righteousness, the Mormon Angel, a teepee representing the Native American Church of North America, the nine-pointed star of the Bahai, the atom of the Atheist (no, really), the symbols for Eckankar, Humanist, Izumo-taishakyo, Soka-Gakkai, and finally, the pentacle of Wicca. (Star Trek fans could choose the symbol of the Kohen hands, which is where Leonard Nemoy got the idea for the Vulcan greeting.)
Our common definition of religious freedom in this country can let all of those diverse ideas, beliefs, and faiths flourish, but not Islam? And do we really want to make the mood and values of the locals the litmus test as to whether a religion can be practiced there? How would that rule apply to deeply conservative or traditional houses of worship in places such as Manhattan or San Francisco or Cambridge or Berkeley? "I'm sorry, you can't practice that faith here; your prayer for the unborn offends your pro-choice neighbors."
Some may recall, that during his first interview with Chris Wallace, Cain had no idea what the Palestinian "right of return" was.
If you enjoy election campaign coverage, and a pithy survey of blog reactions in your morning Inbox, you can subscribe to Morning Jolt here.
"Let 'em Play": Overview
Many thanks to Eugene for inviting me to discuss my just-published paper "Let 'em Play": A Study in the Jurisprudence of Sport, 99 Geo. L.J. 1325, in this forum. I'm grateful for the opportunity and look forward to your comments.
Recall the women's semifinal of the 2009 U.S. Open, pitting Serena Williams against Kim Clijsters. Having lost the first set, Williams was serving to Clijsters at 5–6 in the second. Down 15–30, Williams's first serve was wide. On Williams's second service, the line judge called a foot fault, putting her down double-match point.
Williams exploded at the call, shouting at and threatening the lineswoman. Because Williams had earlier committed a code violation for racket abuse, this second code violation called forth a mandatory one-point penalty. That gave the match to Clijsters.
Williams's outburst was indefensible. But put that aside and focus on the fault. CBS color commentator John McEnroe remarked at the time: "you don't call that there." His point was not that the call was factually mistaken, but that it was inappropriate at that point in the match even if factually correct: the lineswoman should have cut Williams a little slack. Many observers agreed. As another former tour professional put it, a foot fault "is something you just don't call – not at that juncture of the match."
The McEnrovian position – that at least some rules of some sports should be enforced less strictly toward the end of close matches – is an endorsement of what might be termed "temporal variance." It is highly controversial. As one letter writer to the New York Times objected: "To suggest that an official not call a penalty just because it happens during a critical point in a contest would be considered absurd in any sport. Tennis should be no exception." On this view, which probably resonates with a common understanding of "the rule of law," sports rules should be enforced with resolute temporal invariance.
Perhaps McEnroe was wrong about Williams's foot fault. But the premise of the Times letter – that participants and fans of any other sport would reject temporal variance decisively – is demonstrably false. One letter appearing in Sports Illustrated objected to the disparity of attention focused on Williams as compared to U.S. Open officials, precisely on the grounds that "[r]eferees for the NFL, NHL and NBA have generally agreed that in the final moments, games should be won or lost by the players and not the officials."
Regardless of just how general this supposed agreement is, many NBA fans would affirm both that contact that would ordinarily constitute a foul is frequently not called during the critical last few possessions of a close contest and that that is how it should be. So insistence on rigid temporal invariance requires argument not just assertion.
However, advocates of temporal variance shouldn't be smug either. For while the negative import of temporal variance is clear – the denial of categorical temporal invariance – its positive import is not. Surely those who believe that Williams should not have been called for a fault implicitly invoke a principle broader than "don't call foot faults in the twelfth game of the second set of semifinal matches in grand slam tournaments."
But how much broader? Is the governing principle that all rules of all sports should be enforced less rigorously toward the end of contests? Presumably not. Few proponents of temporal variance would contend that pitchers should be awarded extra inches around the plate in the ninth inning, or that a last-second touchdown pass should be called good if the receiver was only a little out of bounds. So even if categorical temporal invariance is too rigid, the contours and bases of optimal temporal variance remain to be argued for.
"Let 'em Play" is an attempt to think through this problem. My goal is not to establish whether and in what respects temporal variance is optimal, all things considered, for any given sport. That's too darn hard.
My goal at this early stage is merely to figure out whether "sense can be made" of such a practice. Instead of trying to determine conclusively just what optimal practices should be, I aim only to explain why temporally variant rule enforcement might be sensible – what can plausibly be said for it.
Furthermore, investigating temporal variance in sport is only the paper's surface agenda.
While econometricians are busily tackling sport, and while philosophers of sport occasionally draw on legal philosophy (in addition to, e.g., aesthetics, ethics, and metaphysics), legal theorists have paid sports only passing attention. Most jurisprudential appeals to sports and games have been ad hoc, and most legal writing on sports that does not pertain to sports law is intended more to entertain than to edify.
The lack of sustained jurisprudential attention to games, and sports in particular, should surprise, for sports leagues constitute distinct legal systems. This is superficially apparent to non-Americans. While baseball, football, and basketball are governed by official "rule books," the most popular global team sports like soccer, cricket, and rugby are all formally governed by "laws," not "rules." More substantively, sports systems exhibit such essential institutional features as legislatures, adjudicators, and the union of primary and secondary rules.
Accordingly, my grander ambition is to help spur the growth of the jurisprudence of sport as a field worthy of more systematic attention by legal theorists and comparativists. In a sense, "Let 'em Play" does double duty as a manifesto for an enlarged program of jurisprudential inquiry.
Importantly, it's not just that (municipal) legal systems and sports systems confront similar challenges. For several reasons, jurisprudential attention to sports is particularly likely to contribute to our understanding of phenomena and dynamics shared in common.
First, because sports' rules and practices have long been thought unworthy of serious philosophical investigation, even low-hanging fruit has yet to be harvested. Second, sports supply vastly many examples for the generation and testing of hypotheses. And third, our judgments and intuitions about certain practices – such as, to take the present topic, the propriety of context-variant enforcement of rules – are less likely in the sports courts than in the courts of law to be colored or tainted by possibly distracting substantive value commitments and preferences.
For all these reasons, sporting systems, though rarely explored with seriousness by legal theorists and comparative lawyers, comprise a worthy object of legal-theoretical study.
Here's my plan for the remainder of the week. Tomorrow, I will summarize my prima facie case for temporally variant enforcement of non-shooting fouls in basketball and, by extension, of similar violations in other sports. In a nutshell, that argument depends upon a growing gap between the competitive cost of the infraction and the cost of the sanction imposed for the infraction.
On Wednesday, I will explain why the argument that might explain and justify temporally variant enforcement of fouls in sports like basketball, hockey, and football most likely does not cover the rules governing faults in tennis. On Thursday I will propose a different account that might fill that need – one that draws on what I think are novel observations about the hoary rules/standards distinction.
On Friday, I will advance a modest proposal for improving the world's most popular sport.
July 17, 2011
Cordray to Head Consumer Financial Protection Bureau
The Columbus Dispatch is reporting that President Obama will nominate former Ohio Attorney General (and one-time Jeopardy champ) Richard Cordray to heat the new Consumer Financial Protection Bureau. An official announcement is expected Monday morning. Many had expected Harvard law professor and administration aide Elizabeth Warren would get the job, as she who spearheaded the push to create a CFPB in the first place.
Jews, Labor Laws, and Poland before World War II
Let's say I wrote a book that had the following thesis: (a) Governments tend to favor those with political power; (b) before World War II, Jews in Poland had little political power; and (c) therefore, various labor regulations enacted in Poland between 1920 and 1938, tended at best not to take the interests of Jews into account, and at worst was intentionally aimed at excluding them from the workforce. Judicial decisions invalidating labor regulations, by contrast, tended to help Jewish workers. Let's say the book provided specific examples that backed up this thesis.
I think that it's unlikely that anyone would bat an eye–while readers may or may not think I had dealt appropriately with various nuances, the main thesis would seem intuitively obvious, and the examples would be seen as basically what one would have expected.
Okay, now substitute "African Americans" for "Jews," and "the United States" for "Poland," and begin the time period in the 1880s instead of 1920 [Poland, of course, having been part of the Russian Empire before WWI]. This is the thesis of my 2001 book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal. It attracted, and still occasionally attracts (as when I briefly mentioned it on this blog yesterday), some controversy (along, of course, with some plaudits). In part the controversy arises because the thesis is contrary to a certain mythos that American "progressive" forces–labor unions, racial minorities, and political elites and intellectuals who favor vigorous government regulation of the economy–are in natural harmony. In part, some critics seem to implicitly and uncharitably believe that while "our" academic work is neutral social science, "they" must have an underlying presentist political and ideological agenda.
If, however, one can separate the book's thesis from its rather tenuous relationship to various modern controversies, it's really no more remarkable, nor any more ideologically charged, that the Poland/Jews example provided above.
July 16, 2011
The Economist: The Future Belongs to Drones
It's not just me. The Economist also observes that the future belongs to drones. In this case, referring to the F-35 fighter and the many problems in the production program.
The future belongs to the drones
But the longer-term outlook for the F-35 is uncertain. Its costly capabilities are intended to make it effective against the air defences of a sophisticated enemy, such as China. But the growing vulnerability of American aircraft carriers to Chinese missiles will mean operating from well beyond the F-35's 600-mile (1,000km) range.
Some military strategists already think that the job the F-35 is meant to do can be better handled by cruise missiles and remotely piloted drones. In many roles, unmanned planes are more efficient: they carry neither a bulky pilot nor the kit that keeps him alive, which means they can both turn faster and be stealthier. And if they are shot down, no one dies. Even the F-35's champions concede that it will probably be the last manned strike fighter aircraft the West will build.
It is important not to overstate; there will long be a role for manned aircraft in warfare. Pilots will not be out of a job any time in the next several decades. But the technology is steadily moving toward an increase in the types, numbers, missions, and roles for drones, in both conventional warfare and counterterrorism. Recent articles about a drones "arms race" on account of the US supposedly having let the genie out of the bottle have quite frequently missed the point (I don't include here the Washington Post's story a week or two ago by William Wan and Peter Finn which, despite the phrase 'global race' in the headline, actually made precisely this observation).
The reasons for moving toward drones are, in the first place, about the cost and usefulness of drones themselves — countries that can afford cutting edge technology will either develop or buy them for reasons independent of what other countries do. Second, insofar as there is competitive pressure among countries to develop drones, it is far less about the other guy having one than responding to pressures of a different kind — e.g., as the article notes, the vulnerability of America's carrier fleet to Chinese anti-ship missiles that operate from beyond the F-35's range. And the most important arms race will be about counters to drones, and counters to the counters, and so on. Third, the military technology for drones is part of a larger shift in aviation generally; civil aviation will be transformed, and military applications will be a subset of that.
Guest Post from Prof. Larry Tribe on the Constitutionality of the Debt Ceiling
Prof. Larry Tribe (Harvard), one of the nation's leading liberal constitutional law scholars, passed along this item (also posted at Dorf on Law), and I thought our readers would find it interesting:
I. The Constitutionality of the Debt Ceiling
Professor Buchanan argues in a recent post that the Constitution "[f]ortunately ... does require that the debt-limit law be declared invalid," writing:
Everyone agrees that, without the debt-limit law, current law would allow the government to borrow the money necessary to cover its obligations. If that were not so, then we would not be in danger of exceeding the debt limit. That is, if the spending laws had not been written to include the authority to increase borrowing, then those laws would currently not be enforceable even in the absence of an overall debt limit. The very premise of the debt-limit standoff, therefore, is that the otherwise-valid spending laws would lead to an increase in debt above $14.3 trillion. The debt-limit statute purports to prevent the government from paying those other obligations, which violates Section 4.In an op-ed published in the New York Times, I argued that the debt limit law is perfectly constitutional. Professor Buchanan's comment does not prompt me to change that conclusion but does encourage me to elaborate on it:
To begin, Professor Buchanan asserts that the "spending laws [were] written to include the authority to increase borrowing." I am at a loss to see why Professor Buchanan assumes this to be so. Some spending laws might conceivably be written in a way that includes such authority — that is, written expressly or impliedly to authorize whatever borrowing might be needed to fund the obligations they create, notwithstanding any other limit set by law. But I haven't personally seen any spending laws written in a way that includes such authority and certainly can't accept the premise that each spending law necessarily contains its own built-in borrowing authorization. Spending laws empower the government to spend money. Other laws empower the government to collect the revenues to be spent. For example, one set of laws (31 U.S.C. §§ 3101–3113) authorizes the government to raise revenue by borrowing money. Another set of laws (the Internal Revenue Code) authorizes it to raise revenue by taxation. Still other laws authorize raising revenue by coining money, by selling federal property, and so on.
Professor Buchanan complains that the "debt limit statute purports to prevent the government from paying" for spending commitments it has already authorized. Not so. The debt limit statute merely limits one source of revenue that the government might use to pay its bills. Similarly, the tax code limits a different source of revenue — taxation — that the government might also use to cover its expenditures. The provisions setting tax rates or providing for tax deductions all limit the number of tax dollars that can flow into the Treasury, just as the debt ceiling limits the number of borrowing dollars that can flow into the Treasury. Professor Buchanan simply does not explain why the one is constitutional, and the other unconstitutional — or why one, but not the other, becomes unconstitutional under sufficiently dire fiscal circumstances.
II. Prioritization and Section 4
All of this brings me to my second point: what is the government to do if, come August 3, it does not have enough money to make all of the expenditures that Congress has required by law? The answer, I think, is that it must prioritize expenditures: some payments simply have to be postponed until the Treasury has enough money to make them.
Professor Buchanan demurs. He says that this solution would itself violate Section 4 of the Fourteenth Amendment, because spending commitments made by law are themselves a part of the "public debt" whose "validity" that provision says "shall not be questioned." Although I have endorsed broad readings of the Constitution's aspirational statements of principle, that approach is surely inappropriate with respect to the Constitution's precise, hard-wired, rule-like provisions — including Section 4.
Professor Buchanan argues for his conclusion as follows: he contends that, in Perry v. United States, the Supreme Court used the words "obligation" and "debt" interchangeably. "Obligations" encompass all "legally required payments," the argument goes, so any legally required payment is a debt protected by the Public Debt Clause.
This reliance on a stray dictum in a plurality opinion from 1935 is unconvincing, for at least five reasons:
(1) Text: Section 4 itself distinguishes "obligations" from "debts." On the one hand, it provides that the "validity of the public debt … shall not be questioned." On the other hand, it declares "any debt or obligation incurred in aid of insurrection or rebellion against the United States … illegal and void." If Professor Buchanan were right that "debt" and "obligation" mean the same thing, then the phrase "debt or obligation" would be redundant.
(2) Legislative history: As Michael Stern has pointed out, Congress rejected an earlier version of the clause that would have protected "debts or obligations." "It seems that the framers of the Fourteenth Amendment deliberately decided to exclude 'obligations' from the Public Debt Clause."
(3) Context: The word "debt" appears five times in the original Constitution. In each of those instances, it would be highly unnatural to read "debt" as synonymous with "all legally required payments." The alternative — suggesting that the framers or ratifiers of the Fourteenth Amendment used a word already used in the Constitution, but imbued it with a different meaning — is equally implausible.
(4) Common sense: The Public Debt Clause prohibits Congress from repudiating any debt already incurred. If Professor Buchanan were right that "debt" includes all spending commitments, then the Public Debt Clause would prohibit Congress from ever repealing or revising a legally authorized appropriation. That conclusion is at war with history and with reason.
(5) Precedent: In Flemming v. Nestor, the Supreme Court held that Congress could revise or repeal Social Security Act benefits even though they had already been promised by prior legislation. This decision contradicts Professor Buchanan's position that all legally required payments are part of the debt whose validity cannot "be questioned."
Therefore, it cannot be said that Section 4 itself forbids the prioritization of appropriations.
III. Prioritization and the Principle Against Line-Item Vetoes
It would be remiss of me if I did not mention another, more powerful argument against prioritization (albeit one on which Professor Buchanan does not rely). In Clinton v. New York, the Supreme Court held that it is unconstitutional for the President (even with congressional authorization) to exercise a "line-item veto": the President may not cancel appropriations that Congress has authorized.
One might try to distinguish prioritizing appropriations temporarily (intending to honor them once the Treasury has enough revenue) from canceling appropriations outright. But this is splitting hairs. Let me assume at least for the sake of argument here that the anti-line item veto principle would apply to prioritization just as much as it would apply to cancelation.
Doesn't this mean that prioritization would be unconstitutional after all? I don't think so. Just as there is a constitutional principle prohibiting the executive to make spending decisions, so too is there a constitutional principle prohibiting the executive from making decisions concerning revenue: the Constitution authorizes Congress, not the President, "To lay and collect Taxes," "To borrow money on the credit of the United States," "To coin Money," and "to dispose of … the Territory or other Property belonging to the United States." And it authorizes Congress, not the President, "to enforce, by appropriate legislation, the provisions" of the Fourteenth Amendment – including, of course, Section 4.
In a situation where the legislatively authorized spending commitments outstrip legislatively authorized revenue, it is impossible to honor both of these principles at once. One of them must give way. But which one? The answer may not be derivable from any explicit textual command, but history at least points in a clear direction: the principle that must yield is the one barring executive control over spending, not the one barring executive control over revenue.
The principle against executive raising of revenue dates to at least the thirteenth century. In Magna Carta, King John promised, "No scutage nor aid shall be imposed on our kingdom, unless by common counsel of our kingdom." The English Bill of Rights of 1689 condemned King James II for an "endeavour to subvert and extirpate the … the laws and liberties of this kingdom [by] levying money for and to the use of the Crown by pretence of prerogative," and declared that "levying money … without grant of Parliament … is illegal." And the battle cry of the American Revolution was, of course, "No taxation without representation!"
In light of this unbroken history, it should come as no surprise that, as far as I am aware, no President of the United States has ever attempted to raise revenue without congressional authorization. By contrast, as Justice Scalia noted in his Clinton dissent, executive cancellation of congressional appropriations is far from unprecedented. For example, Ulysses Grant, Franklin D. Roosevelt, Harry Truman, and Richard Nixon all declined to spend money that Congress had appropriated.
Our legal system, moreover, has a long and deeply-rooted tradition of prioritizing personal liberty from government imposition over affirmative expectations of government payment, important though such expectations may often be and troublesome as that distinction may have become in an era of growing dependence upon governmental fiscal support. This tradition confirms what history suggests: the principle against legislatively unauthorized raising of revenue takes precedence over the principle against executive postponements or even outright cancellations of legislatively authorized expenditure.
To be sure, I do not mean to suggest that, if it becomes necessary for the President to prioritize expenditures, the President is free to use whatever priorities he likes. First, the Constitution itself requires giving some expenditures (such as the payment of judicial salaries, Art. III, § 1, or payments on the public debt, Amdt. XIV, § 4) priority over others. Second, even if circumstances make it impossible for the President to obey the anti-line item veto rule announced in Clinton v. New York, he must do his best to honor the principles animating that rule: namely, using the line item veto to give the President unbounded power over spending would allow the Chief Executive to reward political allies and punish political adversaries. The President may not, for example, prioritize spending in blue states over spending in red states. Within those constitutional boundaries, however, it is up to the President to determine how spending must be prioritized when it becomes impossible to comply with all of the President's legal obligations simultaneously.
***
I suppose it goes without saying that, even though unilateral executive prioritization comports with the President's oath to "preserve, protect and defend the Constitution of the United States," it is far from an ideal solution to the impending crisis. I accordingly continue to hope that the politicians in Washington will come to their senses before August 2, and that they will render this discussion academic.
Complements to Rehabilitating Lochner
A reader emailed to say he enjoyed Rehabilitating Lochner, and wonders if I could recommend additional books on the same or closely related topics. Okay. Just note that my recommendation doesn't necessarily constitute an endorsement of the author's conclusions.
David Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right. Very recent, and covers some of the same ground as Rehabilitating Lochner––Mayer, a J.D./Ph.D. in history, also approaches the subject from a historical perspective. Unlike me, Mayer takes a normative position that liberty of contract is protected by the Fourteenth Amendment and should be judicially enforced.
Paul Kens, Lochner v. New York: Economic Regulation on Trial. The last major scholarly work on Lochner to propound the traditional view of Lochner–that its origins lie in "laissez faire Social Darwinism" and that its consequences were almost uniformly bad–that has lost favor among historians and that Rehabilitating Lochner tries to discredit once and for all. Comparing and contrasting the two books would make a great assignment for a constitutional history seminar.
Kenneth Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law. My favorite constitutional history book, ever.I reviewed it here. Kersch's influence is apparent in several places in Rehabilitating Lochner. In particular, Kersch emphasizes how post-New Deal legal elites distorted pre-New Deal constitutional history to justify the massive changes to constitutional doctrine that occurred starting in the 1930s.
David Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. My previous Lochner–related book. The basic idea: (a) Legislators tend to favor those with political power; (b) before the modern civil rights era, African Americans had little political power; and (c) therefore, New Deal and pre-New Deal labor legislation tended at best not to take the interests of African Americans into account, and at worst was intentionally aimed at excluding them from the workforce. Judicial decisions favoring free labor markets, by contrast, tended to help African-American workers.
Bernard Siegan, Economic Liberties and the Constitution. A somewhat dated revisionist account of the Supreme Court's economic liberties jurisprudence. What's remarkable about this book is that when it was published in 1980, there had been exactly one law review article even mildly sympathetic to that jurisprudence in the last forty or so years. Siegan, then, was operating at a huge scholarly disadvantage, and did an incredible job. Siegan's second edition is a complete and very inferior rewrite. Instead, check out Tim Sandefur, The Right to Earn a Living: Economic Freedom and the Law.
Howard Gillman, The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence. Gillman locates the origin of Lochner and other "substantive due process" cases of the pre-New Deal era in the anti-"class legislation" tradition going back to the Jacksonian era and beyond. I think Gillman overstates his case, but the book is undoubtedly an important contribution to Lochner historiography.
Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution. An "internalist" account of constitutional change during the 1930s, focusing on the weaknesses and internal contradictions in pre-New Deal constitutional jurisprudence, as opposed to political and historical forces operating on the Court. Query whether the changes that took place in the mid-1930s were nearly as consequential as what happened when the more traditionalist Justices who shared at least some common premises were replaced with a series of Roosevelt appointees in the late 1930s and early 1940s.
G. Edward White, The Constitution and the New Deal. Lots of interesting insights in this book, including a discussion of just how out-of-the-mainstream Justice Holmes's due process opinions were at the time.
Albert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes. Some VC commenters have given me a hard time about my negative views of Justice Holmes. Alschuler almost makes me look like a fan in comparison.
Richard Epstein, How Progressives Rewrote the Constitution. The title speaks for itself.
Michael Phillips, The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s. Uneven, but definitely worth a look if you are interested in Lochner.
Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty. Only tangentially related, but always worth a plug!
Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World. Contains an excellent "historicist" discussion of Lochner, and is well worth reading otherwise.
James W. Ely, The Guardian of Every other Right: A Constitutional History of Property Rights. The title speaks for itself.
July 15, 2011
The Next Round of Leah Libresco's Turing Test for Religion
Leah Libresco has now posted many of the questions and answers for the next round of her Turing Test for religion. They are available at her blog. In the previous round, her fifteen test participants (some real atheists, and some Christians) answered four questions about atheism, trying to persuade readers that they are genuine atheists. In this round, the same people answer four questions about Christianity, seeking to persuade readers that they are genuine Christians. The eight questions are available here.
Readers will be able to vote on which respondents are the real Christians and which the fakers.
For Intellectual-History-of-Originalism Buffs
Over at the Legal History Blog, Ken Kersch has two posts on the influence, or lack thereof, of William Crosskey, a law professor at the University of Chicago from 1935 to 1968 (post 1 and post 2). As Kersch points out, Crosskey was one of the first modern-day "originalists," and he may (or may not) have influenced a young Robert Bork. I have Crosskey's three volume Politics and the Constitution in the History of the United States on my bookshelf, and it's always struck me as an interesting but very idiosyncratic work. I've been mildly curious about how influential Crosskey was in his day, and while Kersch doesn't seem to reach a firm conclusion, Crosskey was clearly at least something of a player in constitutional debates in his time, but now has been almost completely forgotten.
A side point: originalism as we know it today really didn't have intellectual legs until after World War II, and the version of originalism most widely accepted today, original meaning originalism, only gained traction about two decades old. While various precursors of modern originalism were implicit, and very occasionally explicit, in some earlier Supreme Court opinions, if one insists on judging pre-1940s cases by whether they used modern originalist methodology, one will find that few if any cases were decided "correctly," regardless of whether one ultimately approves of the outcome.
I'm Not — Really — Making This Up:
Yesterday I posted a story from Techdirt about a series of photographs of macaque monkeys taken, supposedly, by the monkeys themselves, and I asked, with tongue at least partially in cheek, whether the apparent copyright claim to these photos (Caters News Agency) held any water, given that the photos were taken by monkeys.
Well, now Caters News Agency has sent Techdirt a takedown notice! Really! Not, apparently, on behalf of the monkeys, but surely that's coming . . .
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