Democracy as Popular Responsibility

For the past couple of weeks I've been watching this show Legend of the Galactic Heroes. It's a curious entity: a Japanese anime from 1988 that, in a whole host of ways, has a shockingly progressive ethos. And it also manages something that I've almost never encountered: meaningful, interesting exploration of political philosophy through fictional narrative. I'm not sure why exactly that's so rare. Perhaps it's because democracies are boring, for narrative fiction purposes anyway. Stories demand characters but democracies are fundamentally not about any one person. Political stories set in democracies, therefore, will often over-emphasize the importance of individual figures, which is fine if they're just stories but problematic if they try to get philosophical. (I believe that's in part the story of The West Wing.) Most fantasy worlds, meanwhile, are pre-democratic, essentially feudal/monarchical societies, which are much better for storytelling but also boring for political theory purposes because, well, non-democratic political theory is wrong per se and therefore not very interesting.

Legend of the Galactic Heroes solves this dilemma I think in part by structuring itself as a conflict between the Empire, a Germanic society ruled by an autocratic Kaiser and an oppressive, entrenched nobility, and the Free Planets Alliance, a democratic society that broke away from the Empire some few hundred years ago. So far this sounds like a pretty standard Cold War-style Good vs. Evil story. The thing is, though, that the Alliance is actually a deeply diseased "democracy," probably as a result of 150 years of perpetual war. The show does a deft job of depicting a society that is simply not free despite its formally democratic institutions. The Empire, meanwhile, is equally decrepit after five hundred years of comfortable privilege for its aristocrats, but has the good fortune to be conquered by Reinhard von Lohengramm, one of the protagonists of the show, who rises up from the minor nobility to become Kaiser and begin his own, new dynasty. Though no democrat, Reinhard is very much a progressive reformer.

And what this dynamic sets up is the very interesting question of which side of this war between a corrupted democracy and an enlightened dictatorship is actually the good side. It's a particularly pressing question for the other chief protagonist, Yang Wenli, an admiral in the Alliance fleet who actually hates war and really just wants to be a history scholar, who feels uncomfortable about fighting on behalf of the in many ways unworthy Alliance government. And for whatever reason (credit presumably goes in large part to the writers of the show), Yang is spectacularly wise, and every single thing he says about political philosophy, every decision that he makes as the war goes along, is fascinating. It really gets at the ideas of, what is democracy, why is it good and important, etc., in a very deep way that you just don't see in a lot of fiction.

Yes, People Are Bad. They Should Become Less Bad.

So apparently there's some group trying to argue that the rise of humanity is somehow good for the rest of the planet. Or at least they're saying stuff like that (under the hashtag #GoodAnthropocene, apparently) in the context of a political document seemingly arguing in favor of increased reliance on natural gas and nuclear power (and maybe also solar), and also some stuff about using urbanization and various other supposedly modern/postmodern trends to keep human civilization thriving while reducing the "footprint" of said civilization on the environment. The headline of the Slate article in the link above describes the group as being against "people are bad" environmentalism; certainly their hashtag supports that description. But, like, if they think they're arguing that people haven't been bad, they don't really seem to be. According to the Slate article, they trumpet, basically, the awesomeness of human civilization in itself (for humans that is): "[l]ife expectancy is on the rise, infectious disease risk has plummeted, natural disasters kill fewer people, and abject poverty is on the decline." But they also acknowledge that "those gains have not come without sacrifice: We’re losing species at an incredible rate, and climate change could add ever more stress on human and natural systems." Which sounds like it adds up to, human civilization has been pretty sweet for the humans and pretty terrible for everyone else. Which is about my view, and also sounds exactly like the "people are bad" view. I mean I guess you could distinguish between people who think it was worth it and people who think it wasn't, but that's kind of a boring issue, being just about how we characterize the past rather than what we do going forward.

And on that front, isn't the answer obvious? We're not going to tear down human civilization. Maybe that's regrettable, maybe it's not, but there's nothing to be done about it. So all we can do is our level best to mitigate the damage that human civilization inflicts upon the rest of the world. Or, to put it another way, people should become less bad, as much less bad as they can manage. Maybe as these people seem to suggest, we'll be able to make human civilization genuinely harmonious with nature, or maybe we'll only be able to make it very slightly less bad. Maybe, that is to say, people are incurably bad, or maybe they're not. But surely we must try, whether or not we will eventually fail, and whether or not at the outset of the attempt we think we will fail. What's the alternative? Throw up our hands in despair? Abandon caring about the non-human part of the world, and the horrors inflicted upon it by human civilization? Abandon human civilization, which, as noted above, ain't gonna happen? There is no alternative. If we're doomed to be bad for the world, we must at the very least struggle against that doom to the utmost.

Oh, and if we're gonna try to make human civilization more harmoniously compatible with nature and our fellow species, maaybe we should stop torturing and slaughtering billions upon billions of animals per year just because we think their flesh tastes nice? Just a thought.

Why Death Is Different

The central problem of capital punishment law, or at least of capital punishment doctrine, is the tension between the demand for rational, consistent sentencing free from arbitrariness or bias on the one hand and individualized sentencing on the other hand. The former idea was the basis for the Furman v. Georgia decision that briefly instituted a national moratorium on capital punishment, and the idea in that case was that it was simply unacceptable that, of the large number of people out there convicted of capital offenses, only a small number were chosen to die and there didn't seem to be any apparent acceptable reason why these people, and not those other people who committed the exact same crime, ought to die. There were of course readily apparent unacceptable reasons, namely that if you were poor or black you were probably one of the ones who "ought" to die. The Court didn't really grapple with those issues, but it did say that arbitrary imposition of the death penalty was unacceptable, and that something must be done to limit the ability of sentencing juries (for it is juries, not judges, doing the sentencing in most every capital scheme these days*). However, the Court has also held that a capital sentencing scheme must allow the jury the essentially unlimited ability to exercise mercy: that is to say, to look at the particular defendant as an individual and decide that, despite their crimes, they do not deserve to die. There is of course a problem here, and as Justice Blackmun observed in his dissent from the denial of certiorari in Callins v. Collins, in which he wrote his famous "From this day forward I no longer shall tinker with the machinery of death" line, the end result has just been to subject a (slightly) smaller number of people to the same kind of arbitrary sentencing that was at issue in Furman.

One natural response to that whole discussion is to say, well, how is this problem in any way peculiar to capital cases? Doesn't the tension between the demands for consistency and for individualized mercy manifest itself in any kind of criminal case? What's different, in other words, about death? And I've never had a great answer to that. I mean, there are obvious reasons why the death penalty is different in general, mostly the irreversibility of a wrongly imposed sentence. But I think I only just realized why death is different specifically as regards this specific little paradox. And the reason, I think, is a line that a number of different death penalty advocates use; a quick search shows it being used by Bryan Stevenson and by Helen Prejean:

Each of us is more than the worst thing we've ever done.

And I submit that this incredibly powerful idea is simply not relevant in non-capital cases. It is always true. The criminal is always more than just the crime, no matter what the crime. But that doesn't mean they shouldn't be punished for the crime. Except when the punishment in question is their total destruction. Then this idea becomes relevant in a big way. And it makes us feel the need to ask of each capital defendant, well, how much more? The way the penalty phase of most capital trials proceeds these days, I believe, is basically that the defendant tries to show the jury something in them that's worth saving, to show the jury that they are meaningfully more than the worst thing they've ever done. Whereas, say, a proper psychopathic serial killer may really just not be appreciably more than all the murders they've committed, and is hence seen as not worth saving.

And so the demand for sentencing to be individual really is peculiar to capital cases. In every other kind of case we're happy, more or less, to just say, y'know what, you did the crime, so you have to do the time, no matter how much of a worthwhile person you might otherwise be. But we can't quite bring ourselves to say that when we're talking about killing the person. But that kind of thinking is just anathema to what our legal system is supposed to be. This isn't to say that the same issues of racial bias don't find ways to manifest themselves at the lower levels of criminal cases; they surely do. But it's not just racial bias that's wrong with capital sentencing: it's the feeling that, of the set of people who committed certain crimes formally denoted the "worst of the worst" (although that designation is basically a joke given that most jurisdictions include felony murder), some are being executed and others aren't basically just on the basis of whether the jury likes them or not. That kind of stops feeling like the rule of law, and it only does so because we (rightly) can't bring ourselves to kill someone who has anything worth saving in them, even if they may have committed terrible, terrible crimes. Because we recognize, on some level, that people are—or at least can be—more than the worst thing they've ever done.

And that's why death is different (in this regard).


*In a few places judges can "override" a jury's verdict. In even fewer places that can include overriding a life imprisonment verdict and having the judge himself impose a death sentence.

Moral Certainty and the Constitution

Criminal defendants are innocent until proven guilty beyond a reasonable doubt. That's the standard formulation, the modern one at least. The idea is pretty simple: criminal convictions carry severe penalties, usually imprisonment, these days for lengthy terms, and so if there's doubt as to whether or not the defendant is guilty, we shouldn't impose those penalties on them. Except that there's always some doubt about everything, so we limit it to reasonable doubt. Makes sense. Another version of the same idea, which I believe may have been used in criminal cases in the old days, is the idea of proof "to a moral certainty." Moral certainty is an old idea that seems to have been inspired as a defense against, like, philosophical skepticism. The idea is, well, okay, yes, we never really know anything absolutely for certain, but we can know things to a degree of certainty that's enough to act on. Moral certainty is basically, I would think, that degree of certainty upon which it is morally acceptable/defensible/correct to act. And of course, this standard will be more or less strict depending on the action being contemplated. Sometimes we might think it correct to act on little more than just a hunch or a suspicion, because it's not that bad if we're wrong, or because it could be very bad if we don't act and should have. In, say, the criminal law context, however, we really don't want to convict someone who doesn't deserve it, for the reasons given above, and so it takes a lot of proof to prove guilt to a moral certainty. It's all one standard, but the work it does varies by context.

I've just been reading McCleskey v. Kemp for my Capital Punishment class. That's the case where the Supreme Court rejected a challenge to the Georgia death penalty as racially discriminatory and hence a violation of the Equal Protection Clause despite an incredibly sophisticated statistical study demonstrating that death-eligible killers whose victims were white got the death penalty a lot more often than those whose victims were black. The Court was basically applying standard (twisted) Equal Protection doctrine, which holds (under the Washington v. Davis standard) that a challenge under the Equal Protection Clause bears the burden of demonstrating intentional discrimination on the basis of race or some other improper factor. Merely showing that a policy has a "disparate impact," i.e. that it's worse for black people/women/etc. than for whites/men/etc., is not enough, although a sufficiently stark disparity can be circumstantial evidence of discriminatory intent. So in McCleskey, the Court says that this study shows only the risk that race may infect capital sentencing decisions, not that any given sentence was the product of intentional racial discrimination. After all, the authors of the study conceded that they cannot prove "to a moral certainty" that race influenced any particular case.

And when I read that phrase, I just had to think, like, what does moral certainty require in this case? I mean, I actually think that the idea of moral certainty ought to doom the death penalty altogether,* but let's set that aside. The Court was asked in this case to set aside McCleskey's death sentence as having been improperly influenced by race. If McCleskey is wrong and his sentence was totally race-free, but the Court found for him anyway, well, horror of horrors, he would spend the rest of his life in jail. That's, I mean, if we consider that a by-hypothesis fair jury thought he should hang, then I guess that's not a great result, but certainly, Warren McCleskey's being imprisoned rather than executed isn't in any way repugnant to our fundamental laws or principles of justice. If, on the other hand, he was right, and his sentence was discriminatory, but the Court didn't act, well then, a black man would be executed for the specific crime of killing a white person. And that is a constitutional abomination. And so it seems to me that this is a case where the "moral certainty" standard is very low. In fact I think the "moral certainty" standard should basically be on the other side, that unless we could say to a moral certainty that race was not the deciding factor in McCleskey's case we should grant him his reprieve.

And this, I think, should hold true across constitutional law generally. People often say that our Constitution, with its multiple veto points between the bicameralism-and-presentment legislative system, the President's pardon and prosecutorial discretion powers, judicial review, etc., is designed to minimize the amount of legislating that goes on, that it is inherently biased in favor of government inaction. As Akhil Amar I think rightly notes, however, the system is not really designed to prevent any laws from passing but to prevent unconstitutional laws from passing: everyone gets a chance to disapprove a law if they think it's unconstitutional. And if we buy that understanding of the Constitution's overarching priorities, then shouldn't we have a general rule that we won't accept the risk of a constitutional violation? We already do this in places: the Miranda rule, for instance, is a clear case where the constitutional violation is not interrogating a suspect without having first informed them of their rights, it's tricking someone into confessing who doesn't know that they have a right not to, and we can't know that this isn't happening unless we provide a warning. There are other examples, but there are also lots of places where we take the opposite approach, where the Court in essence seems to view the wrongful exercise of judicial review as this terrible tragedy that we must be so very careful to avoid. But that just seems backwards. The tragedy is letting constitutional violations happen right under our noses, when we know that they might be happening, just because we can't be sure that they are. We should err, in other words, on the side of not violating the Constitution, and judges are supposed to play their part in making sure that we do.^

This is, I think, one of the strongest forms of my problem with modern equal protection doctrine and the Washington v. Davis standard: discrimination on the basis of race is, like, the greatest constitutional evil there is. It's America's original sin, we literally fought a war that culminated in a series of amendments designed to eradicate it, and the only thing that lets us even pretend to be a decent country is that beginning in 1954 we actually started trying to live up to those amendments. So why the bloody hell is the burden on the challenger to prove that there was intentional racial discrimination? Maybe some of the time when policies have a racially disparate impact it will be completely innocent, but like, so what? If we assume ad arguendo that there's this vast swath of racially disparate things governments do where we just can't tell whether or not they have discriminatory purpose, shouldn't we just not do any of those things? Like, even when we're wrong, I'm not too cut up about having governments no longer do things that disparately hurt black people. If that is the cost of my false positives, and the cost of false negatives is allowing deliberate racial discrimination to proceed, like, even under the Washington v. Davis theory that the Constitution only forbids the latter, shouldn't we still be willing to swallow an awful lot of false positives to avoid false negatives? Now, I actually think we can be somewhat more, ahem, discriminating between different disparate-impact policies, and sort out which ones are okay and which ones aren't (basically by putting stronger and stronger burdens on the government to justify its policy choices as the disparities grow wider), but the prime directive of our equal protection doctrine has just got to be making sure that, as far as is possible, we not let organs of the American government do racially discriminatory things.

And in general that we not allow constitutional violations to happen. We, the American people acting through our federal and state governments, don't have to do things. We could not do things. And so, I think, we shouldn't require moral certainty, in any very stringent sense, before courts will stop us from doing things in the name of the Constitution; rather, we should demand moral certainty that our actions are constitutional before we do them. And courts should be similarly hesitant to allow any government action, particularly action that deprives any person of life, liberty, or property, to proceed if they cannot satisfy themselves that it is constitutional. Perhaps there should be some prudential exceptions to that rule, where the practical consequences of inaction in a field of constitutional uncertainty will be truly dire, or--if this is a thing--where the potential violations feel somewhat de minimis. And the rule isn't that all legislation must prove its constitutionality beyond a reasonable doubt, as we mean that in the criminal context. But the judicial attitude should be one of vigilance, of caution not toward wielding the awesome power of constitutional review but toward failing to wield that power when the Constitution's defense required it.




*Once we admit that there's any possibility of wrongful convictions, which at this point is on par with admitting that the earth is round, then, well, we just don't have to execute people; even in cases with the most overwhelming proof of guilt of the most reprehensible crimes, we can just lock people up, presumptively forever, but then retain the ability to at least partially fix our mistakes if it turns out we made one.
^Of course, judges aren't the only ones with this responsibility; in at least some senses, legislatures have primary responsibilities for not passing unconstitutional laws in the first place. This doesn't mean, however, that legislatures should decline to pass any law that they worry the courts will invalidate; doing so would result in a gap between those laws that the courts actually do think are unconstitutional and those that the legislature can actually pass, which would be a needless limitation on the people's ability to self-govern. Rather it means that a legislature should obviously not pass any law which it itself believes to be unconstitutional, and (zooming in one level) legislators oughtn't vote for laws they think are unconstitutional. That includes laws that the courts would predictably uphold!

Big Government Revisited

A while ago I announced on this blog that I Hate "Big Government." Specifically, in that post I argued against the usage of the phrase "big government" to refer to a government specifically defined as having a large budget, compared to its country's economy, e.g. when Medicare, a large federal spending program financed by ordinary taxes, is attacked as being a form of "big government." To me, the phrase is meant to conjure up visions of George Orwell's 1984 and a big surveillance state that has infringed the liberties of its subjects, but general taxes, I argued, don't really infringe on people's liberty very much (setting aside the question of whether they're economically desirable) and once the government has its hands on the money, well, it can spend it however it wants without violating anyone's liberties. And I still think that's basically correct, but I recently gained a deeper appreciation of what the "big government (a.k.a. big budget)" complaint is. The thing is, it's not about the tax side of the equation, it's about the spending side.

Sometimes the Easy Thing is Also the Right Thing

This semester I'm taking a class called "Capital Punishment: Race, Poverty, and Disadvantage." It is shaping up to be a rather unsettling class, though obviously in ways that are a feature and not a bug. In any event, our reading for this week is Furman v. Georgia, the 1972 case in which the Court briefly declared the death penalty unconstitutional. This is what I like to call a "seriatim" case, one in which every single Justice wrote an opinion of his own (in addition to a per curiam announcing the judgment of the Court but not the reasoning); the word is used to describe the British practice, also followed during the first decade of our Constitution, in which there was no single opinion of the Court and each judge would always deliver his own opinion. Chief Justice John Marshall abolished seriatim decision-making to promote Court solidarity and enhance its power and prestige, but every so often (especially during the Burger Court, I've found) things break down and most or all of the Justices need to have their say.

Anyway, one of the opinions was of course by Justice Blackmun. Here's how it opened:

Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood’s training and life’s experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of “reverence for life.”

This was a dissenting opinion. Because, Blackmun says, his sentiments against the death penalty are purely those that should characterize legislative or perhaps executive decision-making, not the judicial disposition of cases. A little later on he says that:

To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death.

The implication is that, while it would be easy, it would not be correct, and it would not be correct because this is not a decision for judges to make. This is a pretty common trope, employed perhaps most often by Justice Felix Frankfurter, although Blackmun's opinion is unusual in a way. The typical Frankfurter line is that "whatever we may think of the merits of this policy," it is not unconstitutional and therefore the judiciary is powerless to stop it. Blackmun, on the other hand, tells us in no uncertain terms what he thinks of the policy; he goes into considerable depth about how it is contrary to all of his deepest values.  Blackmun closed by saying that:

Although personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.

Of course, some several decades later Blackmun famously declared that he would "no longer tinker with the machinery of death." That is to say, he had become convinced not that capital punishment was inherently unconstitutional but that it could not be imposed through a system that was anything other than arbitrary and capricious, contrary to the Constitution's requirements.

There's a lesson in that, I think. From his childhood through his retirement from the Court and his death, Harry Blackmun felt nothing but revulsion toward the death penalty. When he joined the Court, he felt however compelled to ignore his own moral impulses and instead apply "the law," operating of course under the assumption that those were two disjoint categories. Justice Blackmun would not do the "easy" thing and strike down those laws he found so morally repugnant; no, he would follow the law. But the older, wiser Justice Blackmun eventually became convinced that the "hard" thing simply could not be done lawfully. He never took the position Justice Brennan forcefully (and, in my opinion, masterfully) espoused in Furman, that death was an inherently unconstitutional punishment. Rather he realized that judicial attempts to craft a system of procedural safeguards that would cabin the evils of the punishment, to "tinker with the machinery of death," were futile, that the system could never be good enough. That was the voice of experience, not naive idealism. It was rather naive when he once thought that such tinkering was worthwhile, that we could in fact build a good enough machine of death.* Experience taught him to follow his heart.

Yes, it is easy to strike the balance in favor of life and against death. There's a reason for that, and it's not just that it's the right thing to do, morally speaking (though it does follow from this basic fact). It's because a wrongful decision striking down these laws would have been no worse than any other decision wrongly denying legislative authority to the American people on some purported constitutional grounds, while a wrongful decision upholding them would have been far worse than any other decision wrongly permitting to them such legislative power, for it would have led the American government to kill people, human beings in its custody, in violation of the Constitution--perhaps the worst legal atrocity imaginable. Therefore, had I been in Blackmun's situation, I would not have voted to uphold the death penalty unless I was absolutely convinced that there was no possible legitimate constitutional argument for striking them down. This is ultimately the key point of Philip Bobbitt's theory of constitutional law: that the law is ultimately indeterminate, that there are different ways of making valid legal arguments and that these modalities can conflict, and that this is an acceptable, nay, indispensable part of our legal system because it allows us to choose. And that choice, between different possible legitimate ways of resolving a case, cannot help but be a place where conscience enters the legal system. For Bobbitt, this is the whole point.

In 1972, Harry Blackmun thought he didn't have a choice--or rather, he thought he had one choice that was easy and another one that was correct. But, fortunately, we live in a constitutional system that does make some room for conscience and for moral choice. And when we make those moral choices, when we follow our conscience in choosing between two visions of the law, of course those choices will feel easy. It should always feel easier to follow conscience than to disregard it. But just because it is easy doesn't mean it isn't also right.

Just ask Justice Blackmun.


*No, not that kind.

Also, Regarding "Justified Shootings"

Okay, one last thought about the whole Ferguson thing. As part of their coverage of the Ferguson outrages this week, Vox.com put up a post called, "When is it legal for a cop to kill you?" The idea was to educate people about the law governing police shootings, which is basically that, as a matter of constitutional law, cops may shoot someone to protect their life or the life of a third party (as may anyone else who's in a position to do so), and they may also shoot a suspect fleeing a crime scene if and only if they have probable cause to think the suspect has committed a violent felony. And the main reaction I kept having to reading the article was, okay, but do you have to actually kill the person? Like, we can put on our philosopher's hats and think about when it's morally justified to kill someone, and we might come up with something a lot like these two situations. The first one makes a ton of sense: in a choice between "murderer kills innocent person" and "attempted murderer is killed," you choose option #2 every time (except, maybe, in some sort of action-movie scripted scenario where the attempted murder in question is actually justified for some reason, heh). The second one is a bit tougher to justify given the level of uncertainty that may often be involved, but at the very least we can see why not letting someone you know to be a murderer flee a crime scene has some of the same elements of not letting someone shoot someone else.

But just because killing the person in question might be somewhere above the ethical replacement-level line, that doesn't mean it's the best thing. Ideally you'd manage to both prevent the violence/apprehend the suspect and not kill anyone. Now, I get why it's not a great idea for cops to shoot dudes who point guns at other dudes in the leg. In that circumstance, I get shoot to kill, and honestly, if you point a gun at someone else and make it pretty damn clear you mean to shoot them, you don't have that much of a complaint if someone else shoots and kills you first.* But in the second circumstance? The only possible reason for preferring to shoot a fleeing suspect in the chest is that you're more likely to hit them that way. Stipulating that your bullet will find its target, shooting in the leg accomplishes 100% of what shooting in the chest would, minus the gratuitous killing. Hell, shooting with some sort of stun gun/tranquilizer dart/tazer would accomplish 100% of what shooting to kill would, minus the gratuitous killing.

So basically what I'm saying is, shouldn't there be some kind of narrow tailoring here? Shouldn't there be some effort to minimize the amount of killing that goes on, rather than just saying, "well, I can make a case that killing this person isn't worse than leaving them uninterfered-with, so I'm gonna kill them"? Shouldn't there maybe be a rule that, if you could've chosen a less-likely-to-cause-someone's-death option that would probably have gotten the job done just as well, you weren't exactly "justified" in using the more-likely-to-kill option instead? Maybe that can't be as a matter of law; maybe you shouldn't be sent to jail for such a decision. But shouldn't you, y'know, get fired for it? Or something? One way or another I know that other countries get by without having their police forces shoot so many people dead, so there must be something we could do to have that happen less often here that wouldn't be a disaster. It seems to me like a moral imperative of the first order that we try.


*Of course, there is the ol' grey zone where someone does something that makes it unclear whether they're about to try to shoot someone. Like, for instance, the guy who was shot earlier this week (not in Ferguson, I believe, just elsewhere in America, the Greatest Country Ever or so I'm told) carrying a toy, plastic rifle around a Wal-Mart. Or when someone goes to fish their wallet out of their pocket for ID or whatever and the policeman thinks they're going for a gun. (Because concealed carry doesn't have any downsides whatsoever...) I feel like the balance that an awful lot of police seem to strike in these situations is to basically give complete, 100% priority to protecting their own life, and 0% priority to making sure they don't kill an innocent person. That does not seem like a particularly good balance to me, since they're both, y'know, human beings who aren't in the act of trying to murder anyone. In fact, since the police officer but not the totally random dude off the street has literally signed up to risk their life in defense of the populace, I think there's a valid though by no means slam-dunk argument for giving more weight to not killing totally random innocent dudes than to letting cops protect themselves. But at the very least they've gotta give more weight to that interest than they do now, right?

Someone Needs to Brush Up on Their MLK

This is kind of random, but I was just reading the Vox.com "cards" explaining the whole Nevada rancher controversy/standoff/thing and I saw that some Tea Party types have attempted to label the efforts of one Cliven Bundy to keep the federal government from seizing cattle he's been illegally grazing on federal lands for many years "civil disobedience." If you accept the basic premise that the federal government is wholly illegitimate, I guess that could almost make sense. Except there's a wee problem: it completely ignores everything political philosophers have worked out about the theory of civil disobedience. Because, see, there's a reason we have laws, and there's a reason you'd like to think that people have a moral obligation to follow laws, even if they think those laws are wrong. Everyone just acting according to their own view of what the law should be, rather than what the law is, would be, well, anarchy, or something very nearly resembling it. And yet it seems fairly obvious that, in the extreme case, one cannot be under an obligation to follow a truly unjust law. Reconciling the two requires limits on the manner of civil disobedience, as well as limits on when it is appropriate. To my mind the best single expression of the theory of civil disobedience comes, not surprisingly, from Martin Luther King, in his Letter from a Birmingham Jail. And perhaps the best passage from that majestic tract is this:

In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

The point is to break the law, and get arrested and punished for it. That's the whole point. Civil disobedience would be if Bundy had grazed his cattle on federal lands, gone around saying he thought federal ownership of those lands was illegitimate, and then let them confiscate his cattle and raised an almighty stink about it, attempting to rally public opinion. Any claim to immunity from punishment for one's act of disobedience is inconsistent with the theory Dr. King lays out. 

Of course, no one is bound to accept MLK's words as binding authority as to the limits of civil disobedience But you don't even need to bother reading Letter from a Birmingham Jail to realize that, of course, the single most defining characteristic of civil disobedience is that it be civil, i.e. nonviolent. What's happening in Arizona is described as an armed stand-off. That is, perforce and in and of itself with no possible counterargument, enough to defeat a claim to legitimate civil disobedience. If Bundy's actions are to be justified, they are to be justified as revolution, nothing more or less. It is quite possible to have a regime so unjust that violent revolution is eminently justified (see South Africa, circa 1948-1994), and of course there's been a disquietingly prominent proto-revolutionary strain in Tea Party politics. But there should be no confusion over what's going on here. Civil disobedience it ain't. Domestic terrorism it is, even if it's the justified kind, like that of Nelson Mandela against the apartheid government.

But, y'know, it isn't. It's just an idiot with some guns looking to get a whole lot of people killed for really no reason whatsoever. What a hero.

What Richard Posner Gets Wrong About Ideology

I'm reading an excerpt from Richard Posner's book How Judges Think for one of my classes, and I just came across the following passage:

For it is implausible that people are libertarians, or socialists, or originalists because libertarianism, or socialism, or originalism is "correct." They can't all be, and probably none is, except in severely qualified form. These isms, like religious beliefs, are indeed hypothesis-driven rather than fact-driven. Nothing is more common than for different people of equal competence in reasoning to form different beliefs from the same information. Think of how sophisticated people reacted to student riots protesting the Vietnam War in the late 1960s and early 1970s: some with horror, fearing social disintegration; others with exhilaration, hoping for transformative social change. They were seeing the same thing but interpreting it in different ways. Alternately they were reacting differently to the same information because of different intuitions, a kind of buried knowledge.

This strikes me as basically wrong. It's part of something that I think is basically right, namely a justification of judicial use of personal ideology in reaching decisions in legally ambiguous cases. But this gets something wrong about ideology, I think, and it's a common thing for people to get wrong. His example is instructive, because the "social disintegration" that some feared and the "transformative social change" that others hoped for were of course the exact same thing. It's just that some people wanted it to happen and other people didn't. So liberal radicals and conservative traditionalists weren't really "interpreting" the riots differently, they just differed on whether they liked what was happening.

My overall interpretation of ideological disagreements is that they're mostly about the fact that people have significantly different goals, values, and priorities from one another. Some of these differences are purely a matter of individual temperament and nature, differences in moral philosophy or what-have-you. Many derive from the fact that much of politics is a contest between the interests of different groups, and members of those groups have an understandable preference for their own side's interests. That's most of what was going on in the 1960s turmoil, for instance: society was set up in a way that put certain types of people in power and kept other types of people out of power, the disempowered types didn't like it, obviously, and started agitating to change it, and the people in power were not happy about the prospect of having their position challenged. You don't need any "different interpretations" to see why different kinds of people would react differently to the same events. It's like how people in Boston and in the Bronx had by and large opposite reactions to David Ortiz's various game-changing home runs in the 2004 ALCS: they were rooting for different teams. That's basically just a form of partisanship, which Posner rightly distinguishes from ideology, but in a sense they're not so different. I want the Mets to do well, on an essentially arbitrary basis; I want my own life to be a good one, for understandably simple reasons; and there are certain things that I would like to see happen on a purely moral basis. The origins of my preferences are different in each case, but the effect is the same: there's something I want to see happen, and I'm going to react to everything about the world based on how it affects those goals or desires.

The Living Constitution, Post-Script: Plessy v. Ferguson Edition

A brief follow-up to my previous post about how no one really believes in the living constitution. Steve Calabresi liked to say, in the class I took with him about constitutional theory, that the first task of any good constitutional theory is to explain why Brown v. Board of Education is correct. Brown is in many ways the center-piece of the modern constitutional understanding and its relationship to society; any theory which views it as erroneous has, therefore, a fatal weakness. But I've often had the thought, especially when reading anything written by Bruce Ackerman but also when reading Jack Balkin's Living Originalism, that this is only half of the test. I don't just want a theory to tell me why Brown is correct. I want it to tell me why Plessy v. Ferguson was wrong. Now, that might sound like the same thing, since the one overturned the other. But I mean that I want a theory to tell my why Plessy has always been wrong, why it was wrong the day it was decided. Partly that's because I believe it was wrong the day it was decided. Partly that's because I think it's important that it was wrong the day it was decided. If we think Brown is right, and that it's important that it's right, which we do, I think it equally important to state clearly that the contrary result could never be the correct one under our Constitution. If Plessy was not really wrong the day it was decided, then the Fourteenth Amendment, which we think of as guaranteeing racial equality, does not really do so, because somehow Plessy was consistent with it, once upon a time.

So I found it very interesting when the article from which I drew the Newtonian-vs.-Darwinian imagery later described the holding of the Brown case thusly:

Not that Plessy v. Ferguson was wrong in 1896, the Court argued, but rather Plessy v. Ferguson had become erroneous because of what separate but equal had come to represent.

The Court, in other words, rejected my view. Plessy wasn't wrong at the time, but it became wrong, as the meaning of segregation changed or perhaps as we just grew to understand that meaning better.

But I actually think this is a perfect example of my point from my last post. Because, really? Do we really think anyone believed that? That Earl Warren did? That William Brennan did? That they thought the problem with Plessy was just that it had become outdated? I know that the architect of the Brown case, Thurgood Marshall, didn't think Plessy was correct. He was the leader of an organized movement that had been working to undermine and eventually overturn Plessy for more than half of the time between the two cases. Of course he thought Plessy had been wrong the day it was decided. Certainly my grandfather, who defended the Brown case on traditional legal grounds during the controversy it generated, though Plessy had been wrong, and obviously so. Do we really think that Warren, Brennan, Hugo Black, Felix Frankfurter thought that Louisiana's railroad segregation laws of the 1890s were constitutional? I don't think they did. I just don't buy it. I think they all thought that racial segregation was and had always been a denial of the equal protection of the laws.

But that isn't what they said. Instead they couched their opinion in the terms of a living constitution, for some reason. One way or another, they didn't want to condemn the past as strongly as their own opinions would condemn it. Which was arguably a mistake. After all, the living constitution idea, or at least what people usually mean by that phrase, really is a philosophically weak idea. It opens you up to the attack of people like Antonin Scalia and Herbert Weschler, who'll accuse you of judicially rewriting the Constitution. Better to just say, no, the ones who rewrote the Constitution were the Plessy Court, who struck out the Equal Protection Clause from the document. It might make the immediate firestorm worse, as those on the other side castigate you for repudiating their past, but in the long run I think it would lead to a more solid theoretical foundation for the new constitutional understanding.

The "Living Constitution" and Repudiating the Past

An article I'm reading about the failed nomination of Robert Bork to the Supreme Court describes the debate over the "living constitution" as one between "an eighteenth century Newtonian Constitution and a nineteenth century Darwinian Constitution." The idea is to contrast the timeless, unchanging nature of Newtonian physics with the kind of gradual evolutionary change identified with Darwin. Kind of at random, this is a perfect metaphor for a point I've been planning on writing into a post for the past several days. The key point is this: Newton was wrong about stuff! Not, actually, wrong about the idea that the laws of physics are unchanging throughout time; as best I know, that part is true. But he got a lot of the laws of physics wrong. The universe only looks the way Newton thought it did at a very superficial level. Our ideas about the universe are very, very different now than they were in 1727, not because the universe has changed but because we just understand it better.

How does this relate to the living constitution? Well, it should be kind of obvious, but now I'll approach from the other side and make the point I've been wanting to make for a while. I don't think anyone really believes in the "living constitution." At least, I think a lot of people who purport to believe it don't really, not if its taken literally. Not if it's taken to mean that the Constitution itself changes over time. Bruce Ackerman sure seems to believe that, but I doubt that someone like William Brennan did. Rather, I think he thought that a lot of existing constitutional doctrine was dead wrong. He, therefore, wanted to issue decisions on constitutional issues that were not remotely consistent with the current or pre-existing understanding of the Constitution. But it's always controversial when the Court repudiates one of its existing precedents, and would doubtless be many times more so when it repudiates a whole complex of constitutional theory. So instead of saying that the old understanding was wrong, he, and those similarly minded, talk about how the Constitution needs to adapt with the times, or whatever.

In other words, the "living constitution" is an idea that people make up to avoid having to be honest about how much they're repudiating the past. We're very proud of our past, and rightly so in a lot of ways. Scientists are very proud of their past, too. But scientists don't see any problem saying that Isaac Newton was a great man and that he was dead wrong about a whole lot of things. This is perhaps one of the downsides to the eminently justified demise of legal scientism, the belief that human laws were like the laws of nature and had only to be discovered through the exercise of reason. (I get the impression that the legal scientists put more emphasis on reason than on experiment or observation, interestingly.) In that framework, it would make complete sense to say, well, the views of a century ago were just plain wrong, and we're not going to follow them even though we don't think the underlying truth has changed. The legal realists rightly attacked the view of law as an abstract, timeless entity, as opposed to the product of ongoing human politics. And, I think, after their triumph it was just easier, more comfortable, to see the Constitution as evolving over time than to say that the constitutional understandings of prior generations were wrong. And so emerged the living constitution, to say that, well, perhaps the past wasn't wrong for the past, but it would be wrong for the present. It lets us gloss over the continuity errors in our Dworkinian chain novel. But we know the errors are there, we put them there on purpose, because we like the new version of the story better than the old one, we just don't quite want to admit it.


Oh, and as an aside, it's worth pointing out that Darwinian evolution unquestionably occurs within a universe governed by timeless physical laws. In fact, Richard Dawkins has suggested that evolution by natural selection is a timeless law of nature, that life anywhere in the universe would proceed by it. There is no inconsistency between evolution and physics, and of course none of this has anything to do with the way we update our scientific understanding of the universe. Also, individual organisms don't evolve, they develop, the Constitution could only "evolve" in a properly Darwinian sense if the change took place over several different versions of it. A Jeffersonian world, where the constitution expired every twenty years, would feature such evolution; ours cannot, even under a "living constitutional" view. But all of that is nit-picking and not really about the legal stuff.

The Qualifying Offer System, Macbeth, and Religious Morality

The current collective bargaining agreement between Major League Baseball and the Players' Association ushered in a new era of compensation for teams that lose a top player to free agency: the qualifying offer. It used to be that the Elias Sports Bureau would simply rank some free agents as top players, either in the A tier or the B tier. A team signing a type A or a type B free agent would forfeit its top draft pick; the player's former team would get that pick, and for a type A free agent they'd also get a bonus compensation pick after the first round of the draft. Now, each team is allowed to make a "qualifying offer," defined as being around the 75th or 80th percentile of all MLB salaries or something (and in practice around $13 or $14 million dollars the first two years), to any or all of their departing free agents. If the player declines a qualifying offer, then any team that signs them (other than, of course, their original team) forfeits their top available, unprotected draft pick, and the offering team gets a compensation pick. The top ten picks are protected.

Two years in, this system has come in for a ton of criticism. In particular, teams have been willing to make qualifying offers to mid-range free agents such as Kyle Lohse, Nelson Cruz, Kendrys Morales, and Stephen Drew. Unlike an elite free agent, these players have trouble finding much of market if their buyers also have to surrender a top draft pick. We've seen these players waiting until spring training had already started to sign, and it's speculated that it won't be long before a qualifying offer player waits until mid-season, after the draft has taken place and the compensation issue is off the board, to sign. Currently, Morales, Drew, and Ervin Santana have yet to sign, with actual spring training baseball less than a week away.

Another line of criticism, however, has emerged from this season. Of the thirteen qualifying offer free agents this offseason, four have signed with the New York Yankees. (Carlos Beltran, Jacoby Ellsbury, Brian McCann, and Hiroki Kuroda, although he was a Yankee to begin with.) Two more have signed with the Baltimore Orioles (Ubaldo Jimenez and Brian McCann.) Of the four others who have signed, two signed with teams whose first-round picks were protected, Curtis Granderson to the Mets and Robinson Cano to the Mariners, and one, Mike Napoli, re-signed with his current team, the Red Sox. Only one team so far has signed exactly one qualifying offer free agent from another team and forfeited their first-round pick to do so, the Texas Rangers, signing Shin-Soo Choo.

What we see, in other words, is that already having signed one qualifying offer free agent makes signing the next one look a lot more appealing, because it's just your second-round pick you're surrendering. Trading your top one draft pick (and market salary) for one top free agent is a worse deal than trading your top two picks (and market salary) for two top free agents, because the draft picks have steeply declining value while the free agents do not.

Why do I mention this, and what does it have to do with Macbeth or religious morality? An excellent question. (In the unlikely event you haven't read Macbeth, read no more.)

Work, Dignity, and the Labor Market

About a month ago I wrote a post arguing that liberals should not favor making federal anti-poverty programs conditional on employment, as doing so would be coercive. Shortly thereafter I wrote another post questioning the implicit assumption of my first post that the kinds of things people do as paid employment generally have net negative utility for the worker, compensation aside. Part of the issue there is the sense of satisfaction, fulfillment, or accomplishment that people get from working, or, to put it another way, a sense of dignity. In the past couple of days two of my favorite political bloggers have written posts about work and dignity: Paul Krugman and Kevin Drum. Krugman was basically responding to Paul Ryan, and Drum was responding to Krugman. I have a few thoughts in response to the whole sequence that, I think, help clarify my earlier remarks.

Stop Saying Atheists Think The Universe is Purposeless (And Other Complaints About Ross Douthat)

So, as reported by Kevin Drum, Ross Douthat apparently has some new column or blog post or something that basically beats the old "how can you have morality without religion?" drum. Kevin Drum's response to Douthat is that secular ethics are in fact older than Christianity and are humming along just fine. Mine is slightly different. Here's the central passage from Douthat:

"The secular picture, meanwhile, seems to have the rigor of the scientific method behind it. But it actually suffers from a deeper intellectual incoherence than either of its rivals [the biblical or the spiritual world pictures], because its cosmology does not harmonize at all with its moral picture.

In essence, it proposes a purely physical and purposeless universe, inhabited by evolutionary accidents whose sense of self is probably illusory. And yet it then continues to insist on moral and political absolutes with all the vigor of a 17th-century New England preacher. And the rope bridges flung across this chasm — the scientific-sounding logic of utilitarianism, the Darwinian justifications for altruism — tend to waft, gently, into a logical abyss."

Can we just stop this already? It's hard to actually get to the bottom of how bad this is. I could go through it line by line. There is no sense in which the modern scientific-atheist cosmology describes the universe as "purposeless." Now, it is true that, as best we can tell, our universe was not created by anyone in particular, and therefore not for any particular purpose. It is also true that the universe was not aiming to create human beings, that instead they just arose from a not-particularly-random evolutionary process over millions of years and that they just as easily could not have. But, so what? Who said that the universe has to have been created for the purpose of having humans in it in order for anything to be meaningful or for individuals' sense of self to be real? Oh, that's right: religious people. That's entirely their idea. For most of us secular-scientific intelligentsia types, the quasi-miraculous facts of life and consciousness create plenty of purpose and meaning all by themselves. And they make it seem, well, pretty bloody obvious that the well-being of us conscious living types is important, and that people should generally act so as to increase it.

Eric Posner Doesn't Get How to Fight Tyranny of the Majority

Eric Posner has a column today at Slate arguing that the recent filibuster reform for judicial nominees is a big problem, especially for fans of moderation. Basically he thinks the filibuster was good because it prevented tyranny of the majority. Now, he concedes that given how our government is constructed, requiring 60 votes in the Senate for ordinary legislation is probably unnecessary to prevent tyranny of the majority. For appointing life-tenured judges, however, he thinks that letting the Senate majority plus a President of the same party do whatever they damn well please is a really bad idea. I have a lot of problems with his argument (that he ignores the game-theoretic argument that the old filibuster rules were never a stable state and that, having conceded that Democrats had no choice given Republican intransigence, he then fails to lay the blame for all the problems he describes squarely on the Republicans' doorstep being two of the biggest), but what I want to talk about in this post is the way he misunderstands "tyranny of the majority," and especially how to fight it.

Unfortunately Lousy Arguments Against the Death Penalty, Courtesy of Larry Flynt

Larry Flynt, renowned purveyor of filth and smut to all the world (not that that's necessarily a bad thing), was apparently shot and paralyzed by neo-Nazi Joseph Franklin in 1978. The state of Missouri is planning on executing Mr. Franklin, and Mr. Flynt wishes they wouldn't. Good for him, and a good if perhaps not-very-representative example of how the pro-death penalty position is not at all the pro-victim position, inherently or empirically. He also seems to be in the "death is too easy" camp; that is, his desire to "spare" Franklin's life is about vengeance, since he sees spending decades rotting in jail as a worse punishment than just being terminated as gently as the state can manage (which isn't very gently, but still). And that's a fine position, though I don't think it can plausibly be very central to the abolitionist argument. But here's a quote from Flynt in the ACLU's statement regarding the case:

“I find it totally absurd that a government that forbids killing is allowed to use that same crime as punishment.”

This is an unfortunately terrible argument against the death penalty. Why? Because oh boy does it prove too much. Specifically, under this logic we shouldn't let the state imprison people ever, since private parties aren't allowed to go around imprisoning other people they don't like. (Unless they get a government contract and call themselves a private prison, but that's a whole different story.) As I argued here, power is central to the very concept of government; it is in the nature of governments that they have a different relationship to power, force, violence, and coercion than do private individuals. This is what we call the "monopoly on the legitimate use of force." So of course the state does things that it simultaneously forbids private persons to do, like telling other people what they can and cannot do under threat of imprisonment and violence if imprisonment is resisted. As such, therefore, the fact that the government forbids murder doesn't tell us that it mayn't also kill people. Now, as it happens, the claim is true, for various ethical, moral, political, and philosophical grounds. And the fact that death is so horrible is the motivating factor both for state opposition to murder and for private opposition to capital punishment. But we need at least a little bit of political theory to make it clear that, while states legitimately enjoy a monopoly on legitimate imprisonment, it shouldn't get to kill people any more than private individuals do.

When Legal Realism Gets Internalized

Back in the old days, common law judges had what we would now consider a naively romantic view of their jobs. They did not see themselves as making the law, but rather as using the principles of Reason to "discover" the law. The law, they thought, had external validity. It just existed, out there, somewhere, sort of as natural law was thought to. Some of them might even have said that the common law they applied was natural law, though others might have denied it. Then, starting a little more than a century ago in this country, came the legal realists, who basically demolished this idea. They pointed out, irrefutably so, that an awful lot of judicial decision-making was influenced by the personal characteristics of individual jurists, the politics, the identities, the ideologies, etc. That was the empirical claim. It got kind of wrapped up in a philosophical claim about what law is. To a legal realist the idea of the law's existing independently of the legal system was absurd. Put perhaps a bit too concisely, the law was seen as nothing more than a prediction about the behavior of judges.

This story, of the rise of legal realism and the corresponding fall, and then demise, of the classical view of law, kept occurring to me earlier tonight as I read the line of Supreme Court cases about federal common law. Here the story is as follows: in Swift v. Tyson (1842), Justice Joseph Story declared that, in a case which only gets into federal court because the parties to it are from different states, i.e. where the legal issues are not ones of federal but rather of state law, the federal courts were not bound to follow state common law. Part of the motivation may have been the desire to create a uniform national commercial law through the federal common law. In any event, this was the rule for very nearly a century, until the Court overturned Swift in Erie Railroad Co. v. Tompkins (1938). And I just couldn't shake the feeling that the difference between the two cases is the difference between classicism and realism. Moreover, though I'm not at all sure which of the two cases I think is better, it seems to me that Erie and its progeny showcase the potential dangers of letting the legal system internalize even the most valid insights of the legal realists.

Law & Economics and Political Theory

First of all, a caveat: I'm not talking about all law & economics. Not necessarily. The central concept of economics is optimization under constraint, and in principle those techniques can be used under any value scheme that tells you what to optimize (although it does get tricky when you have non-quantifiable values). You can do a law & econ-style analysis, therefore, under any value scheme. But I am talking about most of the field of law & economics, as I have encountered it so far. Not just the Richard Posner-style law & econ, the problems with which are obvious, but also with kinder, gentler, Guido Calabresi-style law & econ. Okay, caveat over; actual piece after the break.

The Role of Law

I was at a talk about the life and times of Robert Bork today and, while I don't think I should quote it in too much detail, the speaker did mention several times that Bork was constantly looking for some kind of grand unifying theory for law. Specifically he seems to have spent some time trying to devise a comprehensive theory of when government may legitimately coerce its subjects. That's a very interesting subject. In a way it's the bedrock of political theory, since the legitimate use of force is a very large part of what distinguishes the government from the rest of society. But there's something it isn't, and I think (from some of the other stuff the speaker said about Bork's growing disillusionment) it's something Bork realized it isn't.

It isn't a matter for lawyers and legal institutions to decide.

Let me put that another way. If a country establishes a written democratic constitution that creates a set of political institutions, including a group of courts which will constitute a legal system. That legal system, and the lawyers and judges who constitute it, have a lot of important roles in the functioning of society. Deciding when the government may legitimately coerce its citizens is not one of them. The people have already decided that, in large part, in creating their constitution. It presumably will list some ways in which the government cannot coerce people, or maybe it will instead list certain ways in which the government can coerce people and imply that it mayn't in other cases. Those decisions are binding on the courts. In particular, any exercise of power by the government which the constitution either permits or fails to prohibit (depending on what the background default principle is) must be upheld and, specifically, enforced by the courts. They must be the instruments of that very coercion. They can't come up with some theory of government legitimacy independent from the constitution which gives them life and then refuse to apply laws which run afoul of it. Of course constitutions are ambiguous so a judiciary in interpreting the limits established by the constitution will need to do some political theory, but it must take the constitution as its postulate in doing so.

Now, this isn't to say that people who have legal training and expertise shouldn't think about these issues. Legal training and expertise can be obviously relevant in certain ways. And these deep issues of political theory don't stop being relevant once you write your constitution, not only because you can always amend it. The courts may not prevent the government from doing something just because they think it violates some important principle of political theory independent from the written constitution, but there is an institution that can: the legislature. It's easy. Just don't write laws that do it. If the polity comes to the conclusion that some power which its constitution grants to the government is an improper one which the government should not exercise, it can rather easily elect legislators who will vote not to exercise that power. And people who are lawyers can and should contribute to the public discourse over what kinds of government coercion can be legitimate. What they shouldn't do is start thinking that in their institutional capacity they should act upon these same kinds of philosophizing. That may sound like a slightly weird thing to say for someone who's a big fan of courts being quite expansive in their interpretations of constitutional provisions, but I do believe in rooting such interpretations pretty directly either in the text of the constitution or in the structure of the government that is created by the text.

Now, I don't know how much Bork ever advocated doing this kind of thing that I'm criticizing, how much he tried to substitute his personal theories of political legitimacy for those of the American constitution and political processes. I'm not an expert on Bork's life, and right now I don't feel like making a lengthy empirical examination of how much conservatives do this kind of thing as opposed to liberals, or whatever. It's just a thought I had.

Insult and Injury

I've just read the Department of Justice's amicus brief from Hollingsworth v. Perry, the 2013 Supreme Court case in which the Court had an opportunity to declare a constitutional right against discrimination in state marriage laws against same-sex couples, but declined to do so on grounds of a technicality that, let's be honest, they went searching for. In it, the United States government goes through the arguments asserted by the proponents of Proposition 8, the California initiative which spent about four years banning gay marriage in that state before getting tossed out by the lower courts in this case, for why the Proposition is constitutional, and shreds each one of them. It's a tour de force read, as legal briefs go, with a handful of what are basically applause/laugh lines that are quite good. Of course, shredding the arguments of anti-gay marriage advocates is not exactly tough work. But there was one point made a few times in the brief that I thought was very interesting: any argument the petitioners (that's the pro-Prop 8 people) could advance suggesting a material interest in preserving the exclusivity of marriage to straight couples is severely undermined by the fact that California law under Prop 8 did not deny to gay couples with civil unions any of the material legal rights of marriage. It denied only the word "marriage." Therefore, the government argued, even if those asserted interests are legitimate government interests, the Prop 8 law does not serve those interests because it does not prevent gay people from doing the things it is claimed they shouldn't be let do. It only prevents them from getting the state to call what they're doing "marriage."

This gets at one little principle in the Equal Protection Clause that I think is interesting. Call it the "insult without injury principle": any time the state insults or demeans any person without doing them material injury, it will be acting unconstitutionally. I can't really think of any possible exceptions to this rule; it's almost a tautology if you follow the logic far enough. Insults are by definition (or at least by the Google definition I got from a quick search) disrespectful. Respect is one of the hardest words to define in the entire language, in part because we use it to mean so many related but slightly different things. The relevant meaning, I think, is the one about having due regard for the interests of another. To insult someone, then, is to disrespect them, and to disrespect them is to fail to give due regard to their interests in itself. Yes it is symbolic, but a lot of things are symbolic. And, moreover, because there is no injury involved we know that there is no compelling material reason for this insult. Insult without injury is really strong evidence that the insult is being uttered entirely for its own sake. That means that, when it offers an insult, the state is acting for the sole purpose of insulting someone, of being disrespectful and contemptuous. This I hold to be a violation of the Equal Protection Clause, and especially of the first section of the Fourteenth Amendment read as a cohesive whole as it ought to be.

Now, this principle as stated runs the risk of conveying a certain misimpression. The principle features an exception: it covers only those insults which are not accompanied by injuries. This exception could be seen as proving the rule, in the actual sense of that phrase, i.e. as implying that insults that are added to injury are just fine. That is not the case. What is the case, however, is that laws often do injury to the interests of some person or another, so simply showing injury as such cannot be sufficient to establish an Equal Protection Clause violation. Some injuries are violations, some are not. And I could imagine some injuries which the state has a significant interest in imposing upon certain persons which, either necessarily or in practice, convey an insult as well. That could sometimes be justified. For instance one could view the criminal justice system as an example of this: murderers, thieves, rapists etc. are, upon conviction, sent to prison for many years and formally declared criminals. This last part is, arguably, an insult, although I might argue to the contrary. Insulting criminals in this fashion does not violate Equal Protection, since it is a necessary component of the peculiar and necessary negative treatment given to criminals.

So no, Prop 8 would not have been more acceptable had it included material injuries to the legal rights of gay couples. Adding injury to insult does not get you off the Equal Protection hook. But declining to do so is a tell. There are times when the state may injure, and even times when it may injure and insult at the same time, acceptable, so a demonstration of injury or even of insult and injury is not enough all by itself to establish an Equal Protection violation. Because, however, the only possible motive in an insult unaccompanied by more material injury is the naked desire to insult, virtually any time that anyone can show they have been insulted but not injured by the government they will have made the entirety of the case for a constitutional violation.