EDUARDO MOLINE O'CONNOR

Last week Eduardo Moliné O'Connor was removed from the Argentine Supreme Court by a vote of 46 - 18 in the Senate. A two-third's vote is required for removal. Read MSNBC's short article here, NDTV's article here, an article on Swissinfo here, an article from Ocnus.net here, and this editorial from La Nacion. The article from Ocnus.net helps to flesh out the precise charges against O'Connor:

In its articles of impeachment, the lower house charged him with using his position on the Supreme Court to favor a private company that was demanding the government pay the balance on a multi-million-dollar contract whose validity was being questioned by state auditors.

He was also accused of sabotaging probes into tax evasion and car smuggling by exceeding his authority to impose sanctions on two lower-court judges who were leading those investigations.

O'Connor became a Supreme Court judge on Aug. 6, 1990, and formed part of the so-called "automatic majority" that consistently favored the 1989-1990 government of Carlos Menem.

Take a look also at this e-mail from Jonathan Miller on the Conlawprof list-serv that argues that the politicized nature of O'Connor's judicial opinions might justify the removal. The Argentine Constitution allows for removal for "improper performance." See also this post as Statutory Construction Zone for some pictures of the Argentine Supreme Court and a few additional links.

ABORTION POLITICS IN FRANCE

If you're interested in abortion politics in France, take a look at this article in Le Parisien that discusses some of the controversies surrounding the now withdrawn proposal to make "involuntary interruption of pregnancy" a criminal offense, punishable by one year in jail and a 15,000 euros fine. See also this article in Libération.

CHARLES KRAUTHAMMER, FUDGING IT

Dr. Charles Krauthammer wants to paint Dean as crazy, but he doesn't bother with a full diagnosis (maybe patient visits have been cut too short in his office). Here is Charles Krauthammer's quote from Howard Dean's appearance on the Diane Rehm show from Monday, Dec. 1:

Diane Rehm: "Why do you think he [Bush] is suppressing that [Sept. 11] report?"

Howard Dean: "I don't know. There are many theories about it. The most interesting theory that I've heard so far -- which is nothing more than a theory, it can't be proved -- is that he was warned ahead of time by the Saudis. Now who knows what the real situation is?"

Krauthammer comments:

Now, I cannot testify to Howard Dean's sanity before this campaign, but five terms as governor by a man with no visible tics and no history of involuntary confinement is pretty good evidence of a normal mental status. When he avers, however, that "the most interesting" theory as to why the president is "suppressing" the Sept. 11 report is that Bush knew about Sept. 11 in advance, it's time to check on thorazine supplies. When Rep. Cynthia McKinney (D-Ga.) first broached this idea before the 2002 primary election, it was considered so nutty it helped make her former representative McKinney. Today the Democratic presidential front-runner professes agnosticism as to whether the president of the United States was tipped off about 9/11 by the Saudis, and it goes unnoticed. The virus is spreading.

Howard Dean, nutty? Not so fast. Here's the full quote, which Mr. Krauthammer doesn't bother to tell you about, since it would undercut his argument:

Caller: . . .And the second question is, once we get you in the white house, would you please make sure that there is a thorough investigation of 9/11, and not --

Dean: Yes --

Caller: -- stonewall it.

Dean: There is a report which the president is suppressing evidence for, which is a thorough investigation of 9/11.

Diane Rehm: Why do you think he’s suppressing that report?

Dean: I don’t know. There are many, there are many theories about it, the most interesting theory that I’ve heard so far, which is nothing more than a theory – I can’t think – it can’t be proved, is that he was warned ahead of time by the Saudis. Now, who knows what the real situation is? But the trouble is, by suppressing that kind of information, you lead to those kinds of theories, whether they have any truth to them or not, and eventually they get repeated as fact. So I think the President is taking a great risk by suppressing the clear, the key information that needs to go to the Kean commission.

I transcribed this myself from the audio file of the broadcast, which you can get here. Start at 42:30. I edited out the um's and ah's, but otherwise, unlike Charles Krauthammer, I've given you the full context to evaluate Dean's comments. The main point that Dean seemed to be making was that Presidential suppression of documents leads to the proliferation of rumors that may or may not be true.

Call me crazy, but I don't see anything wrong with that quote, Dr. Krauthammer.

See also The Daily Howler, for Krauthammer's misleading rendering of another Dean quote in the same article, and Nick Confessore at TAPPED on the same theme.

For some (embarrassingly) uncritical appropriations of Krauthammer's piece, see The Belgravia Dispatch, Tim Graham at NRO, Environmental Republican, and Tasty Manatees (good name, though, in a sense). I'm sure there will be more.

MORE: Let me be a little more explicit about why I think that Krauthammer gets the quote wrong. He wants to use this quote as evidence that Dean is "delusional." If Dean weren't "delusional," apparently, he wouldn't find this theory "interesting" -- and he certainly wouldn't do so without calling into question the veracity of the theory, as Krauthammer implies that Dean has done. The full context of the quote shows, however, that in response to a question on the President's "stonewalling" in the 9/11 investigation (a description of the President's behavior that Dr. K does not contest directly -- he just puts scare quotes around "suppressing," even though in truth it's hardly delusional to claim that the Bush administration has suppressed information in the investigation), Dean argues that there are luxuriously proliferating rumors out there that people will eventually begin to repeat as fact. My sense is that Dean was using the word "interesting" in the same way that one might use the word "curious": a claim that piques your interest, but not because of the truth value of the thing. In that respect, the Saudi warning theory is, in fact, "interesting," but if you quote me, please quote the context here as well. At any rate, listen to it and judge for yourself, but for God's sake, don't rely on Dr. Krauthammer's incomplete quotation.

MORE: Mr. Djerjian at Belgravia Dispatch begs to differ. Apparently I pissed him off a bit: his post compares my prose to Derrida's:

Oh, Martson also has a "More" section at the bottom of his post. It was a tad Derrida-like in its complexities (and Brett seems to have special access to Dean's inner thought processes and so muses on a bit about what the word "interesting" means when uttered by Dean).

That hurts, actually. But at least I can spell Gregory's last name right. Aside from that, though, Mr. Djerjian makes some good points -- if you accept the premise that Dean was engaging in "politiking" with that quote. I doubt it. If the statement struck you that way, though -- well, whatever floats your boat. I'd prefer that you hear the original rather than take your cues from Krauthammer, though.

MORE: And finally: I did e-mail Gregory about misspelling my name. To be fair, he's not alone in not being able to get it right. Probably half of my students can't, either.

MORE: WOULD THAT THAT HAD BEEN ALL! Unfortunately for me, see the update, above! Let me tell you, I am so glad that you can read this and chuckle at my incompetence!

OK, THIS IS NOT POLITE

Sorry. Bush Background Generator via you know who.

IN GOD WE TRUST

I was looking for something on the history of FDR's portrait on the dime, partly inspired by this story. Didn't find anything yet, but I did find two other things that are interesting:

• Check out: Willard B. Gatewood's spring 1966 essay "Theodore Roosevelt and the Coinage Controversy" (American Quarterly, Vol. 18, No. 1. pp. 35-51). I used to be ambivalent about the motto "IN GOD WE TRUST" on our currency, but now I'm for keeping it on there. Here's why.
  

  Willard writes:
  

  The real controversy involved the removal of the motto, "In God We Trust," which in the public mind ranked high among the "age old" national traditions. Any tampering with it therefore was likely to be considered unpatriotic and un-Christian. Actually, in 1907, the coinage motto was of relatively recent vintage. The idea of placing a sacred inscription on coins originated with a Pennsylvania clergyman in 1861. In the even the United States destroyed itself in the Civil War, he argued, such coins would provide "antiquaries of succeeding generations" with concrete evidence that Americans had been a Christian people. (40)

  
  I can accept the religious basis for the motto even if the description of the U.S. as a "Christian people" is overdrawn, in my view, since the origins of the motto lay in the sobering thought of the impending national catastrophe and the possibility of a destruction of the United States. The Civil War was a fundamentally transformative event, and the motto was but one expression of the contemporary consciousness of that fact. Since, as I argued below, I think that any attempt to discuss the Constitution of 1787 must proceed backwards through the Reconstruction amendments, I'm happy to know that the coin motto is in large part an expression of the gravity of our second American revolution.
  

  Something else caught my eye in this story. Teddy Roosevelt had attempted to remove the motto as part of his ambitious re-design plans for the national currency. The public outcry was more than he expected, and it proves that some things don't change all that much:
  

  A majority of the church spokesmen . . . preferred to label the omission of "In God We Trust" as evidence of the secular spirit of the age. "To get God off the coins," they argued, reflected the same irreligious climate which spawned movements to "get the Bible out of the schools." A few critics went so far as to suggest that the President's actions smacked of rank atheism. "It seems too much like the first step toward ruin," observed a Massachusetts layman, "and not too far removed from the act of France in the revolution of 1790 when they decreed that God did not exist. (43)



• Take a look also at the article by Gerald Tebben, "Modern art: the Lincoln Penny," from the Columbus Dispatch, 7/31/99. Teddy Roosevelt put Lincoln's portrait on the coin; this was the first time that an actual person had been depicted on U.S. coinage, and you might say that it was a fitting neo-imperial act for a President who had unabashed imperial flair. My suggestion to the Reagan dime crowd is that they should either replace Lincoln's portrait (thus establishing in graphic form the fact that the Republican party is no longer the "party of Lincoln"), or put his face on the $10,000 bill in place of Salmon P. Chase, to the same effect. Just a suggestion.

BJP WIN

Articles on BJP win in state elections in India: NYT, the Hindu, Aljazeera, Hindustan Times. As far as I can tell, the media line, encouraged by Vajpayee, is that they won by rejecting the extremism of folks to their (neo-fascist) right like the VHP, although the VHP's web site claims that they "came to the aid" of the BJP.

MORE: I called VHP "neo-fascist." This is incorrect. In fact, seems to me that it's more accurate to say that they're simply fascists, in the sense that Paul Berman uses that term in Terror and Liberalism.

EELKO VAN MULDER

I don't read portugese, but I think that he (?) bills himself as the most famous dutch poet in Portugal. Nice pictures!

IT'S TRUE

Mission of Burma reunion tour. Via corcoricamo. I'm behind the curve on this one, but so what? Next show: Irving Plaza, NYC, 1/17/04. Can't make it.

MORE (music-related time wasting): worster album covers ever II. Via hamsterwoede. No, I don't read Dutch.

MOVE-ON AD

Mark Kleiman is right about the new Move-on ad :

In one sense, the ad's question is a good one: If it won't wreck the economy to spend $87 billion helping Iraq, why would it wreck the economy to deal with some of our domestic needs? But the basic appeal is to the worst sort of isolationist stinginess that opposes all "foreign aid" because "charity begins at home."

I suppose I ought to be pleased to see the stinginess about helping people abroad that Republicans have used against Democrats for so long turned against them. But I'm not, really. The ad mostly makes me tired.

Read the rest. If we're going to have a foreign policy that is engaged with the world and designed to promote decent regimes (a late 1940s foreign policy, perhaps?), we're going to need fiscal priorities that match those goals (like a late 1940s commitment to spending on both domestic and foreign policy). Bush is wrong for putting tax cuts first and contributing to running up the deficit. Move-on is also wrong, however, to appeal to isolationist sentiments and to imply that we shouldn't be spending money in Iraq at all.

CORNYN

Excellent post by Matthew Yglesias.

Not to be a jerk or anything, but does Senator Cornyn also listen "reluctantly" when folks like the ACLJ come a-callin'? This is not meant as an "are you still beating your wife" question; if the ACLJ or other conservative pressure groups never call him to talk about judges -- to politicize the issue of judges, you might say, or to "play politics" with the issue of judges -- then I withdraw my question.

THANKS

Lawrence Solum's kind Thanksgiving words don't mention this fact, but any learning exchange we've had has been asymmetrical, with the benefits accruing overwhelmingly to me. Thanks, Larry, for a fantastic use of the web. You're a pioneer.

ALDI AND ART

My sister Heidi -- a real, live artist -- likes the idea of the German discount store Aldi selling original artwork, partly because of its egalitarian potential. In an e-mail she writes:

The success of the American art market depends on elitism.

Hard to be elitist if the art sits on the same shelf as bottled beer and canned peas, I guess. Even harder if anyone can just walk in, buy it, and then become an art owner.

FEDERALISM AND RECONSTRUCTION

Steve has a thoughtful reply to my post criticizing his omission of Reconstruction in his essay on the "original understanding." After Reconstruction, the "original understanding" of the 1787 Constitution is only relevant in an attenuated sense; you have to look back at 1787 through Reconstruction, in much the same way that you look at newer provisions before older ones in a state constitution if you can't avoid a conflict between them. A lot depends on the level of abstraction that you use in attempting to avoid the conflict, of course, but the substantive choices here should at least be articulated. The basic point is that whatever theory one might have about the views of the 1787 framers concerning the national government existing "at the pleasure of the States and 'We the People,'" as Steve puts it, those views died during Reconstruction, in my view. As Justice Bradley argues in his concurrence in Knox v. Lee (1870):

The doctrine so long contended for that the Federal Union was a mere compact of States, and that the States, if they chose, might annul or disregard the acts of the National legislature, or might secede from the Union at their pleasure, and that the General government had no power to coerce them into submission to the Constitution, should be regarded as definitely and forever overthrown. This has been finally effected by the National power, as it had often been before, by overwhelming argument.

State sovereignty lost a lot in the Civil War; I think it lost almost everything, but we can quibble on the precise lines to draw, of course. Whether or not incorporation works through the due process clause is a side issue created by the Court's unfortunate backing away from the national power that was established during the Civil War and Reconstruction. The central issue shouldn't be whether or not current incorporation arguments work; the central issue should be what the point of the Reconstruction amendments was at all if the states are not severely constrained by them with respect to what they can do in the name of exercising their sovereign powers over citizens and residents. (Thus, contra Steve, respectfully, whether or not the privileges and immunities clause can do the work of incorporation is not "entirely a separate question" except in the most narrow jurisprudential sense.) The Supreme Court wasn't alone in backing away from Reconstruction. It's tough to be an occupying power, and northerners got sick of the task of building liberal democracy in the south -- a task that took a while, as George Will pointed out on This Week on November 9 ("Does anyone remember how long it took us to change the regime meaning the values as well as the laws of Mississippi?").

As Steve guesses, I don't like the Court's current federalism jurisprudence. It's insufficiently attentive to the Reconstruction amendments and the Civil War. One of the jurisprudential preconditions for this inattention, broadly speaking, is the death of the privileges and immunities clause and the judicial resistance to Reconstruction from which that collapse sprang, in part. I'm not saying that the precise arguments on 11th A and 13th-14th-15th A's line up; I'm saying that the spirit of the current court's approach to the states -- and to congress -- is out of touch with what I take to be the spirit of the Reconstruction amendments.

MORE: Steve replies in an update to his original post. The looming question for me is why being an originalist doesn't require at least a mutual adjustment among the (imagined or ascertained, take your pick) views of all of the folks who seem to have had some part in contributing to the text. My sense is that people who view themselves as originalists generally care more about the Federalist Papers than they do about the records of the 38th and 39th Congress, but I can't see the reason for that preference.

NOTE: I corrected some spelling mistakes in the original post, some of which made their way to Steve's post as well. Sorry!

(JUDICIAL) POLITICS MAKE STRANGE BEDFELLOWS. . .

Says Mr. Sandefur. It's true. Now if I could only convince him to add corporate power (and democracy) to the core of his jurisprudential framework, we might find even more things to agree about! In the meantime, agreement that Slaughterhouse was a mistake is pretty cool. . .

DOMESTIC TERRORISM PLOT

Read David Neiwert's posts on an unfolding domestic terrorism investigation involving cyanide bombs and white supremacists, here and here.

This is scary, scary stuff. Other lessons:

• Racial profiling won't do a lot to fight terrorism So far, the only real weapons of mass destruction we've found since 9 - 11 - 2001 have been in the hands of white supremacists (not in Iraq, as David Neiwert observes).


• The media have dropped the ball on domestic terrorism, big time. We're talking about a real WMD plot with real weapons found in the hands of real terrorists, not medical students on a highway trip or folks with minor visa violations who look muslim.


• The federal government doesn't look too good here, either. Note this quote from the article Neiwert links to:
  

  Since the attacks of September 11, 2001, counter-terrorism agencies have been consumed by national efforts to ferret out U.S.-based foreign terrorist cells whose members hail from the Middle East. Federal investigators were not looking for white supremacist groups when they stumbled across Krar by accident.

  
  Priorities are important. There are few, if any, reported foreign terrorist cell cases that even come close to the level of scariness that we're talking about with respect to these white supremacists.

I'm not saying that al-Qaeda isn't a threat. Of course it is. So are white supremacist crazies with cyanide bombs and an ideology that justifies their use.

DAHLIA LITHWICK IS WRONG, BUT LESS WRONG THAN YOU THINK

Dahlia Lithwick writes:

Of course chasing religion from the public square is hostile. The point is that it's the only means of avoiding a theocracy.

Eugene Volokh responds:

How is discriminating against religious participants in generally available programs "the only means of avoiding a theocracy"?

Stephen Bainbridge agrees and the Curmudgeonly Clerk feels vindicated. On the whole, the Clerk is right here, and I back off a bit from my earlier zeal in defending Lithwick (but not from the basic substance of that earlier post on Scalia).

But Lithwick's accuracy is not the most important issue here. Lithwick's argument is that "chasing religion from the public square" -- an action that she equates with "walling off church from state" -- is the only means of avoiding a theocracy. Lithwick is imprecise, but at least she's shooting in the right direction, in my view. Rather than simply referring to the danger of "theocracy," I would frame the basic thrust of the concerns of the "walling offers" as that of the social strife that results from fears of religious favoritism, which members of disfavored religions will argue is the functional equivalent of a theocracy anyway, just not their theocracy. Read the powerful dissents by Stevens, Souter and Breyer in Zellman v. Simmons-Harris. Professors Volokh and Bainbridge don't provide an argument that justifies discounting these fears. Sort of like the majority in Zellman, but that's another story.

READER RESPONSE ON JUDICIAL NOMINATIONS

In response to my post criticizing Anderson's WSJ op-ed on judicial nominations, reader Brett Bellmore makes a good point:

[T]here is in fact a pretty good explanation as to why. . . Democrats would have been willing to allow most of [Bush's] nominees to be confirmed.

Most of the nominations were for lower courts, highly constrained by precedent, and subject to being over-ruled by realist judges at higher levels. In such positions, even if you don't like formalist judges, they don't present much of a threat to the Democratic agenda. It would appear to me that, even if Democrats are aware that formalist judges are a threat to their plans. . .they're only going to resort to extreme measures against them for the appeals court, or higher. Several of the filibustered nominees have been mentioned as potential future candidates for the Supreme court, and therefore would be subject to a higher level of ideological scrutiny on that basis.

Sounds good to me. Implicit in Bellmore's claim is the assumption that political capital is limited and that strategy is necessary here. I agree with that.

READER RESPONSE ON NATO AND SCHEDULING

In response to this post, reader Jeff Hart writes:

I disagree with your position on President Bush attending his daughters' graduation ceremony instead of a NATO meeting. I'm sure the graduation ceremonies have been on the President's calendar since his daughters headed off to college so it was basically poor planning on the part of the Turks to set up the conflict in the first place.

As you point out, this is a regularly occuring NATO meeting, not a crisis meeting. It will have little practical impact on NATO operations whether the President is there or not. On the other hand, his daughters will definitey notice if Dad isn't at graduation because he's off doing photo-ops with Eurocrats and they will still be his daughters in 2005 or 2009 when he leaves office. If anything, I suspect this will give President Bush a bounce domestically as it shows a man who is willing (and able) to place a high priority on his family relationships and major life events.

Assuming that what’s reported here is true, the original story seemed to indicate that the President’s staff made the original mistake here and didn’t pencil in the graduation ceremonies, so I’m not sure that it’s fair to blame the Turks. Be that as it may, though, in light of the recent bombings in Turkey, perhaps the President should revisit this issue and show support for our embattled ally. Even though it’s “only” a routine NATO meeting, the symbolic effect of a President's wreaking havoc on the schedules of other countries for personal reasons is quite stunning, I think. In addition, for those who are really concerned about the war on terrorism (as I am), the lack of domestic political fallout is probably not the correct standard for evaluating whether or not a presidential action is good or bad.

CANNIBALISM

**Warning: not for the faint of heart** Chris Bertram notes that the German internet cannibalism trial poses some problems for libertarians. See also this article in the Stuttgarter Nachrichten online. Even though I'm not a libertarian, I'm not sure that Bertram is right: I suppose that cannibalism could be an area in which consent is so hard to prove that one might want to prohibit the practice entirely. Moreover, a rule allowing cannibalism might prohibit cases where true consensus exists, but this harm would need to be balanced by the effects of a contrary rule allowing the practice, in which false positives allowing non-consensual cannibalism might occur more often and / or might be more harmful. I realize that I'm smuggling in a concept of harm here, but given that the question is not just what practices should be permitted but what rules should be used in allowing or prohibiting practices, I think the move is justified. Under conditions of uncertainty about consent, where rules are nonetheless unavoidable, factors other than consent need to be brought into the equation.

ONE FREE OVERRULE ANSWER

Sugar, Mr. Poon? asks:

If you could remove one Supreme Court case from the books, which would it be?

Simple answer: The Slaughterhouse Cases, which killed the privileges and immunities clause of the 14th Amendment. As Rogers Smith notes, Slaughterhouse's "doctrines soon provided a legitimating framework for Republican desires to back off from the liberal nationalizing initiatives of the 1860s" (Civic Ideals, 333). Not an original answer on my part of course. Libertarians like the folks at IJ agree that this case has had tragic consequences even though I would disagree with them on the reasons. Timothy Sandefur and John Eastman have made similar arguments as the folks at IJ, but it's not just libertarian property-rights defenders who like the clause -- people who like civil rights more broadly, particularly with respect to struggles over race, often refer to the clause, as do people who think that the retreat from Reconstruction represented a retreat from defensible views of the primacy of national power over state power. Without Slaughterhouse, the return to states' rights views would be less plausible. (Go here, the linked essay on "originalism and federalism" from the post at Southern Appeal, for example, and do a page search for "reconstruction." The implication that the Civil War and reconstruction amendments had no effect on federalism is staggering to me.) (Via Balasubramania's Mania).

GERMAN COURT ISSUES ARREST WARRANTS FOR ARGENTINE JUNTA LEADERS

Read the Scotsman, here, and Deutsche Welle here.

POLYGAMY=SLAVERY=SAME-SEX MARRIAGE?

My admittedly limited brain power is overloaded by this post by Ken Masugi:

As Americans struggle with the issue of same-sex marriage, we should recall the 1856 platform of the Republican Party, which denounced those "twin relics of barbarism-- polygamy, and slavery." In light of Lawrence v. Texas, it is perfectly understandable that someone file suit on behalf of polygamy. . . . Will the current Republicans, and all other Americans who prize freedom, come to see same-sex marriage in the same light as the earlier Republicans saw polygamy and slavery? It's apparent that they understood the Constitution in light of the Declaration of Independence, not some fabrication of constitutional text. (links in original)

Seems like there are a lot of claims here:

• The Republican attacks on slavery and Mormons were based in the same principles.


• These principles were informed by a constitutional understanding: looking at the Constitution "in light of the Declaration."


• Same-sex marriage is sufficiently similar to slavery and polygamy to enjoy the same theoretical cover.


• If Republicans care about freedom (and the Declaration of Independence), they should be against same-sex marriage.

No support is offered for these claims (it's a short post, so perhaps I shouldn't be too picky). The only part of the post that makes sense to me is the claim that a constitutional understanding informed by the Declaration would be hostile toward slavery. It might also be hostile toward the militant, hierarchical, separatist Mormon community out west as a political phenomenon in the 1850s (although I'll admit that I don't know a lot about the history of the Mormon community). But polygamy as such? I really do not get this.

Any help would be appreciated. I'm especially looking for something that will help to make this post into a coherent whole rather than a seemingly random collection of sentences.

TAKINGS DIALOGUE, FINAL ACT?

Timothy Sandefur responds to my last takings post, here, with his usual analytic flair. He also provides links to what now seems to be our exchange in total.

I would like to make one final observation about the conversation. There is a big difference between thinking "in principles" and thinking from a particular principled framework. Mr. Sandefur is in possession of a very interesting theoretical framework derived from the thinking of folks like Richard Epstein; it is a framework that serves him well in his professional career as a lawyer interested in takings issues. But outside of the litigation context -- and in life generally -- it makes no sense to claim that a refusal to accept a particular theoretical context means a lack of a principled view on things. I'll admit that I'm not clear on my own property rights / regulation theory (I've never had to convince a court -- or myself -- that I should win a particular argument in this area), but it's at least clear to me that slavery does not equal criminal prohibitions on sodomy does not equal noncompensable regulatory burdens on landowners and land developers.

My own preference is for a theory of goods that is pluralistic, culture-bound, attentive to the variety of goods that people actually pursue and attentive to the multiple forums in which they pursue and vindicate their claims to those goods. Does that really put me in danger of having Big Brother steal my property and criminalize my sex life? Hardly. Indeed, posing the question in that way helps to highlight some of the interesting issues here, in my opinion.

There is a particular emotional appeal to libertarian views that has fascinated me for a long time, but it is an appeal that is complex and very subtle. On the one hand, the claim is made that there just are rights that are natural and that need to be protected. On the other hand, the primary evidence for the existence of these rights is that a refusal to acknowledge them will lead to overwhelming government power over the individual -- that such a refusal will be dangerous. The descriptive, almost metaphysical claim is intimately bound up with a forward-looking, predictive claim. I find this complex of arguments fascinating for a variety of reasons. The complex makes it very easy to slide from one type of claim into another without being fully aware that one is doing so. So when we start talking about regulatory takings, the discussion slides into whether or not I could effectively prevent a conservative legislature from punishing sodomy with criminal sanctions. The speechlessness that I often experience in such situations has less to do with the fact that I don't have a reasonably serviceable theoretical account of why land-use planning is fine and criminalizing sodomy is not fine, and more to do with the fact that I am taken aback at the sudden shift of theoretical ground. The fact is, outside of a conversation that shifts easily from abstract discussions of rights to detailed predictions about future use of government power, it is really hard to imagine seriously a situation in which these two issues are linked in this precise manner. I suppose we could give it a shot, though:

Billy: I would like to propose a bill that would criminalize homosexual sodomy, the Supreme Court be damned! [Note to reader: Fill in your favorite arguments in favor of such a bill here.]

Brett: Madame Speaker, I rise in opposition to the proposed bill. I think that it is not part of civilized life to be peering into people's bedrooms in order to make sure that they are engaged in the correct kind of sexual activity. Plus, such a bill is nothing more than an expression of animus toward gays and lesbians, an animus that I believe is ill-founded. [etc., etc.]

Billy: Madame Speaker, I would like to remind my honorable colleague from Oswego that in an online discussion with Timothy Sandefur, he argued that Tahoe-Sierra was correctly decided, thus proving that he thought that criminal prohibitions on sodomy were just fine by him, or at least by his principles, correctly understood.

The gallery: INDEED! THUS SAY WE AS WELL!

Speaker: There will be order in the chamber!

Brett: Have we all gone insane?

I just listened to the oral arguments from Bowers and Lawrence again, and even there, I didn't hear a lot about regulatory takings as an appropriate additional analogy to criminal prohibitions on sodomy (believe me, the ones offered are colorful enough). That might not be a fair example on my part; the Supreme Court is certainly not the only interesting forum for these issues, and the appeal of the natural rights approach rests on a broader invocation of the importance of establishing shared public conceptions of right that go far beyond the courtroom. Still, there is a virtue to the Supreme Court's approach here: it's hard to get a theory of property alone right enough for all cases, let alone a theory of right as such.

Probably my affection for Plato, Habermas, and Michael Walzer (not to mention some grad school teachers) has led me to attempt to be attentive to the ways that theoretical claims enter into real-life situations. I don't think that I've succeeded here at being attentive enough, but I thank Mr. Sandefur for engaging my posts and for providing a rich empirical record for future reflection on the phenomenon of constitutional argument.

BUSTED BY THE LOGIC POLICE

Read this post by Dwight Meredith. And if you're like me (alas! often more insistent than consistent), tremble in your boots a little while you're laughing. Ah, the pleasures of Schadenfreude. . .

MARILYN MANSON AND THE SWISS

Brian Warner, aka Marilyn Manson, is under investigation in Switzerland for violating laws protecting religion and for inciting violence. Anyone who knows anything about Swiss laws on religion is invited to comment!

ART COMES TO ALDI

Aldi sells art. And it's profitable for them.

Is it real art if Aldi sells it? If not, why not?

DIEBOLD DROPS SUIT

Diebold stops trying to intimidate critics. See Talk Left. That's good news. If you're going to do elections, do them right, for God's sake, and stop complaining when members of the public are worried that you're not.

MORE: See also American Samizdat.

THANKS FOR THE (STRATEGY) MEMOS

(With apologies to Michael Feldman.) Rick Hasen is not impressed by the complaints expressed by Melanie Kirkpatrick that the stolen Democratic Judiciary Committee strategy memos indicate that interest groups are engaging in "political maneuvering" with respect to judicial nominees:

The problem comes when the interest group pursues something in its self-interest that opposes the public good. I don't see that here. Rather, we have an ideological disagreement over what the public good requires.

Again, if folks like John Cornyn are so concerned about interest group influence on the process, I'm sure that they'll support a full and accurate publication (not theft) of all strategy memos on judicial nominees covering the past forty years or so of Senate and executive branch action in the area. Republicans want to engage in ideological disagreement with Democrats under the cover of "following the law" pure and simple. They'll back themselves into a corner if they really want to claim that political strategy and ideological difference don't have adjacent seats at the nomination and confirmation tables. I'm happy with that.

The appeal of the Republican approach here shows in part the constitutive nature of language, though. I think that Republican ideologues on judges have really convinced themselves in some cases that they really are "following the law" and that Democrats are not. That doesn't make it true, however. It's also worth noting what the appeal of the "following the law" claim is. I see it as primarily threefold: (1) it hooks current Republicans into an imagined tradition of continuity with men (and some women) of the past who have the status of Founders and protective fathers (and some mothers); (2) it allows for an argument that establishes the responsibility of legislative branch members against court authority (courts should be deferential, especially on issues that Republicans claim to care about like abortion and gay rights; they shouldn't be deferential in other areas, though); (3) it allows for a not-so-subtle critique of the perceived excesses of the 1960s, the era of civil rights, sexual liberation, the use of state power to dismantle hierarchies, and the ascendance of a more critical approach to tradition and the use of power public and private.

That's a heady mix. It might even be called a comprehensive approach to life, linking politics, morality, history, and national identity. You're not really going to be able to counter the charm of that entire view by simply appealing to the fact of interest group influence on both the nominations process and the political process more broadly -- even if Republicans are part of that process. Nonetheless, I think that the Democratic approach here is more honest because it requires you to willfully submit to fewer myths about judging and the political process that affects both the nominations process and the development of law as a whole.

POLLENATRIX

Beautiful pictures of flowers and stories about orchid smuggling. What more could you want?

TAXES UNDER SCRUTINY IN GERMANY

The German Constitutional Court has been on a tax tear recently. On Tuesday, the Court will hear challenges from industrial refrigerators that an "enviro-tax" on energy consumption unconstitutionally burdens some industrial branches over others. According to this FAZ article, companies that produce and store their own food products get a break from the additional taxes, while companies that provide industrial refrigeration for products made elsewhere do not get the break. Industrial refrigerators have complained that the discrimination doesn't have a rational justification. FAZ reports that the Constitutional Court has previously ruled that if a company can prove "strangulation by taxes," it can have an entire tax scheme invalidated as contrary to constitutionally protected economic rights. See also this article in the Sueddeutsche Zeiting.

In mid-November, the Court also examined a tax proceeds from the sale of stocks and bonds (I guess that's the closest translation). Apparently state authorities require individuals to declare the proceeds themselves but have not invested resources in oversight mechanisms (and apparently bank privacy laws would have to be changed to provide effective oversight anyway); the end result is that the German government has effectively laid a tax on honest people only, but constitutional norms require equal treatment. See also this article from ARD.

ADULTERY: STILL ILLEGAL IN VIRGINIA AND ELSEWHERE. . .

My department chair called my attention to this article in today's WaPo: Va. Adultery Case Roils Divorce Industry. There are two interesting points here (aside from the fact that the penalty for adultery in MD is ten bucks, a mere 1/25th of the penalty in neighboring Virginny -- swim across the Potomac and you never know what you'll find!!): one is that divorce lawyers actually like the criminal penalty, but for a somewhat perverse reason (at least to outsiders):

There's another reason it's useful to have on the books a law that is seldom prosecuted, said those who follow philandering: It allows individuals in civil divorce cases to assert their Fifth Amendment right against self-incrimination when asked about their extramarital exploits. If adultery were not a crime, spouses involved in divorces would have no legal protection when presented with such questions as, "What were your secretary's pantyhose doing in your glove compartment?" or "Why is the pool boy always smiling?"

So, call me naive, but it's better to have a criminal penalty for something (even if it's rarely enforced) so that your client can make out better in a divorce hearing, after having already become (technically) a law-breaker? The law is a wonderful thing.

The second interesting question is whether or not such laws would pass the Supreme Court's post-Lawrence sexual freedom scrutiny. Justice Scalia thinks not. Writing for NRO, Robert George makes the same point here:

. . . Rick Santorum is right: There is no principle that courts can employ in picking and choosing among the range of possible consensual non-marital forms of sexual conduct for purposes of assigning constitutional protection. If marriage is overthrown as the principle that distinguishes protected from unprotected conduct in matters of sexuality, it will have to be replaced, in the end, by the idea of consent. No non-arbitrary grounds will be available for deciding that sodomy and fornication are "in," but consensual adultery, group sex, commercial sex, etc., are "out." The rational pressure for consistency will move courts in the direction of imposing by judicial fiat the agenda of fundamental social libertarianism.

One cautionary note here. Today I discussed Griswold v. Connecticut with my students in Constitutional Law. Most of my students seemed to think that the law in question might just have well been made in the stone age: they couldn't relate tot he law at all and saw no possible reason why states should be able to have such laws. Part of their willingness to accept judicial power is a sense that the Supreme Court is the highest authority on the Constitution and that it also has a right to align constitutional interpretation with good political principles if it wants to. I'm having a hard time convincing many of them that the Court occasionally makes a serious error -- Plessy, Hammer, Dred Scott, the Civil Rights Cases, etc. So, habitually, my students might just be fine with judicial power as long as they like the results. My point here, though is that it might just be possible that in eighty years, students will simply stare at professors who say, "back in the early days of the twentieth century, states reacted to judicial defenses of sexual liberty by strengthening their criminal statutes prohibiting adultery, and the Court was not amused, even though there was a lag time between the reactions and Supreme Court action."

If the general sequence is that laws criminalizing adultery are pretty much viewed as outmoded expressions of the belief of some that the states can regulate marriage according to traditional values, and then the Court acts -- or if the Court acts on the cusp of that development and gets the development right -- then I suppose I don't have a problem with it. More fundamentally, it seems to me that it's a basic principle of liberal political morality that not everything that even majorities think is simply morally wrong should be a foundation for criminal sanctions. And if we're looking for vindication from subsequent generations for our morals legislation, contemporary student reactions to Griswold should provide a cautionary note.

Still, I will fully admit that I am troubled by an exercise of judicial power on behalf of finding a constitutional right to something that I find morally wrong and generally destructive of healthy relationships, so I hope that the courts don't act too soon on this one.

REGULATORY TAKINGS DIALOGUE, CONTINUED

Fresh from Thanksgiving vacation, Mr. Sandefur responds to my latest post.

Finally we're getting down to some nitty-gritty. He refers to an interesting article by Eric Claeys that is supposed to be a refutation of my claim that local regulations in 1800 that proceeded on the basis of something like a scientific knowledge of wetlands ecology would not have raised constitutional concerns. I'm not sure that Claeys in fact refutes this claim. There's not a lot in his article dealing with 1800 or even cases in either decade before or after 1800. I don't raise this simply to be picky. My original point was that a libertarian approach to regulatory takings was not part of the "original understanding" of the constitution; it seems to me that if anything that happened before the Reconstruction amendments is allowable as evidence of an "original understanding," then the concept has no meaning. You've got at least two generations, maybe three, between 1787 and 1867. I don't see why we should (a) care what people in 1830 thought about the Constitution, or (b) trust people in 1830 to give us evidence of something like "the original understanding" of the folks who wrote, argued over, and ratified the Constitution. All I want to show is that the reference to "original principles" is an attempt to hook up with established patterns of legitimacy in the legal and political culture, but that this attempt is pursued primarily for strategic reasons -- or perhaps also for emotive ones, since it is nice to think that we are in fact carrying forward something like a tradition of liberty. But the case is pretty hard to make once you get into it.

Beyond that point, however, is a more particular claim about the approach that courts took toward regulation as the nineteenth century progressed. Local regulation was primarily un-threatened by constitutional norms, as Novak documents; it wasn't until later in the 19th century, as state governments (and then, eventually, the federal government) began to attempt to exercise the same kind of power that local governments had already been exercising, that you got serious challenges to the practices in the courts. At least that's what I remember Novak to be arguing. A cursory reading of the Claeys article doesn't show anything different. Sandefur is essentially conceding that point when he argues that state power was used in new ways in the late nineteenth century.

This response is fragmented and incomplete, but I want to add two more points:

• Claeys is actually much more friendly to regulation than Sandefur. The "average reciprocity of advantage" approach is not something that I imagine Sandefur wants to get into with respect to attacks on regulatory takings. Pro-regulation folks like this phrase, partly because it seems to shift the burden of proof onto those who would claim that a regulation does not provide that advantage (after all, part of what legislatures do is to balance the burdens and benefits in society as a whole). In addition, unlike Sandefur, Claeys argues that temporary development moratoria should not always trigger the compensation requirement (see 1661-1663). Sandefur's position seemed to be that any and all temporary moratoria would trigger a compensation requirement (governments should have to pay to preserve the status quo). If the "natural rights approach" does what Claeys likes, I'm happier with it than I am with Sandefur's approach.


• Now, because I favor land-use regulation as a legitimate exercise of state power (perhaps securing an average reciprocity of advantage), I am not only in favor of criminal sodomy statutes according to Mr. Sandefur -- I'm also in favor of chattel slavery. The quote from Lincoln that Sandefur uses is a good one, but it is beside the point, for two reasons. First of all: a language of natural rights is not the only language available to describe the proper sphere of government action. The language of natural rights is certainly useful in encouraging limitations of government power; part of its appeal lies in the expected (empirical) assumption that such appeals will help to encourage resistance to excessive government power. Fair enough, but it's odd to claim that only appeals to natural right can justify aversion to criminal sodomy statutes. Secondly, there is just not enough similarity between expropriation along the lines of chattel slavery and a temporary development moratorium to justify even mentioning them in the same sentence. In one, there is a whole social structure devoted to subordination of one individual based on skin color and heritage. In the other, there is a genuine attempt to attain the good of all members of the community. Again, Tahoe is about a clear lake, an environmental good for all. A developer's being pissed off -- even after looking at the balance of payments sheet -- because he or she can't build a house is just not the same kind of thing, as a phenomenon in the real world, as someone being subordinated by the system of chattel slavery. The attempt to link the legitimacy of the attack on development moratoria to the attack on chattel slavery is, to borrow a phrase from Mahon, going "too far."

Gotta go. More later.

GITMO RELEASES

Via Talk Left, we learn that the adminstration is planning on releasing several Gitmo detainees who were mistakenly arrested by the U.S. Apparently, we paid reward money for them.

If you're going to ask for more discretion -- i.e., the discretion to detain anyone at will, for as long as you want (or until the right political moment appears for their release), without judicial oversight -- you can't abuse that discretion. Otherwise, when you claim that you need it again, your claims will meet increased (and justified) suspicion.

This story is pretty ugly. I'm waiting to hear or read defenses of these particular detentions and the timing of their release. Let me know if you find them.

ANN COULTER DEFENDS ATTILA THE HUN

Says the Famous Leader Was Right and Has Been Maligned by Liberals Bent on Destroying America

Quoth she: "I mean, what, are you weak on security? Want Osama as President?"

I'm sorry, but after I read this, I couldn't resist. (Click on the link to see why my header has nothing at all to do with the story.)

The article contains one paragraph on the MA Constitution and 14 paragraphs on why Democrats are lying, double-crossing, treasonous jerks.

Not a great way to start the week.