I encourage you to read James Read's review for Law and Liberty of Kevin Gutzman's thoughtful new political biography James Madison and the Making of America. James Read, who recently participated in the Liberty Forum debate "Sound the Alarm to the People: James Madison, Thomas Jefferson and the Principles of 1798," observes that "in twentieth century scholarship Madison emerged as a towering figure in his own right, in some respects superior to his friend Jefferson. Since his “rediscovery” Madison has received generally favorable treatment from biographers and historians – his presidency excepted, and even that phase of his career has…
Archives for April 2012
Over at the Legal Theory Blog, Larry Solum links to this new paper by Stephen Siegel. The article argues that the original meaning of Article III, Section 2 of the Constitution, which mandates that “[t]he trial of all crimes, except in cases of impeachment, shall be by jury,” does not permit defendants to waive their jury trial. But in 1930,
in Patton v. United States, a unanimous Supreme Court declared federal bench trials constitutionally permissible. Justice George Sutherland — who strongly believed that the sole goal of constitutional interpretation is to discern and effectuate the Constitution’s original meaning — wrote the Patton opinion. True to form, Sutherland’s Patton opinion maintained that defendants’ jury waivers and federal bench trials for serious offenses were consistent with Article III’s original understanding. However, Justice Sutherland got his history wrong. This Article joins the long list of books and articles questioning the Supreme Court’s use of history as a basis for its decisions. More importantly, by studying how evolving principles of constitutional policy transformed the interpretation of Article III, Section 2’s clear text through a mechanism known as “motivated reasoning,” this Article reveals how evolving principles of constitutional policy have become the basis for constitutional law even in the hands of dedicated originalists.
Thus, Siegel argues that George Sutherland, who he claims to be an originalist, misread the Article III, section 2 because of motivated reasoning — that is, Sutherland desired a particular result and therefore was motivated to reason to that conclusion. For a brief discussion of motivated reasoning, see here and the discussion starting on page 441 of Siegel’s article.
Siegel concludes that if judges are led by motivated reasoning, this undermines originalism and leads to an argument for living constitutionalism:
More importantly, by studying how evolving principles of constitutional policy transformed the interpretation of Article III, Section 2’s clear text through a mechanism known as “motivated reasoning,” this Article reveals how evolving principles of constitutional policy have become the basis for constitutional law even in the hands of dedicated originalists. This Article is a study of the problem that motivated reasoning presents for the practice of originalist jurisprudence, and to that extent, it is an argument for the desirability of a forthright jurisprudence of “living constitutionalism.”
I have only skimmed Siegel’s paper, but this critique of originalism seems weak. Yes, motivated reasoning is certainly a danger for originalism and should be avoided. But that hardly represents a strong critique of originalism for at least two reasons. First, all decisionmakers are subject to motivated reasoning. Therefore, any method of decisionmaking that seeks to constrain judges from deciding cases as they wish will be subject to this danger. For example, if living constitutionalism requires judges to decide cases based on prevailing modern values, rather than the values of the individual judge, then motivated reasoning might lead the judge to believe his values are the prevailing ones. Similarly, if judicial decisionmaking is supposed to decide cases based on the law rather than who the parties are, but if the judge is more sympathetic to certain types of parties (employers over employees, labor unions over corporations, etc), the motivated reasoning might lead to mistaken decisions.
Yale Law School just held a Conference on Jack Balkin’s Living Originalism, a darn good book that merits careful reading and engagement. Jack—the most spirited, generous, smartest, funnest guy you can hope to meet in a habitually dorky profession—assembled the entire Yale School of Constitutional Theory, plus a large segment of the journalistic commentariat. Along with Judge Michael McConnell, I had the pleasure of serving (in the words of one participant) as the shabbos goy.
It was a real pleasure, but I did feel tempted more than once to switch off the lights. It is impossible to convey the constitutional establishment’s near-clinical obsession with, and hysteria over, the possible invalidation of the ACA’s individual mandate. It would, they say, amount to an unconscionable act of aggression on the democratic process. A reversal of the New Deal and a resurrection of the ancien régime of the Second Republic. A judicial coup d’état. The Constitution in Exile. (Never mind that the plaintiffs’ briefs explicitly affirm that Wickard was rightly decided.) Much handwringing arose over the elite media’s commitment to be fair to both sides even when, as here, there is no reasonable other side. The plaintiffs’ briefs are beneath contempt. Randy Barnett is a creature of The New York Times and its addiction to a false neutrality.
In my prior posts, I explained how I have always been a Bleeding Heart Libertarian who is concerned about the effects of liberty on the poor and how I now base my political views on a utilitarian approach. Under that approach, the diminishing marginal utility of money is one strong reason for considering social programs for the poor but there are a variety of other reasons, such as incentive effects, the crowding out of charity, and public choice failures, for rejecting such programs. In my last post, I want to consider in more concrete terms where I think these principles…
It is not easy to summarize Charles Murray’s latest book, Coming Apart: The State of White America: 1960-2010 (Crown Forum), and the author himself never lays out his argument. But it seems to go something like this: Since 1960, two new classes have formed in America that are fundamentally shifting the nature of the society: 1) A New Upper Class, larger than that which preceded it, that is the product of an cognitive meritocracy and increased returns on brains; and 2) a New Lower Class that is the product of—well, he never says. (Although Murray does not use the term, the class is essentially what Marx called the lumpenproletariat—criminals, isolates, the mentally ill, and others outside of the labor market.) The two classes are diverging in terms of taste and geographical segregation such that they cannot understand and empathize with each other. They are also diverging in the four “founding virtues” that have been the sine qua non of the American republic: industriousness, honesty (by which he typically means law-abidingness), marriage, and religiosity. While the New Upper Class has seen small decreases in adherence to these virtues, the New Lower Class has suffered precipitous declines that threaten the very ability to support a functional community. These declines have occurred independently of the economy as a whole, and independently of race and ethnicity.
While the New Upper Class is not doing badly per se, it is increasingly a “hollow elite” lacking in the self-confidence and moral fortitude required by its station: to set and promulgate standards for the entire society. Unless drastic change occurs—namely, the elimination of all forms of welfare, including Social Security and Medicare—the confluence of the softening of the New Upper Class and the degeneration of the New Lower Class will lead us to our “doom,” the acceptance of the model of the European welfare state.
We will thus witness the end of the “American project”—the exceptional effort that “human beings can be left free as individuals and families to live their lives as they see fit.” This will have a disastrous effect on our happiness, defined to mean something like Maslow’s self-actualization. Hope remains, however, that we will avoid that path by heeding the lessons of Europe’s looming bankruptcy.
Over at the Volokh Conspiracy, Ilya Somin opines on what would the optimal punishment for World Peace for his vicious elbow to the head of James Hardin. While Ilya says that deterrence justifes a strong punishment, given World Peace's previous acts of violence on the court, retribution would not: On the other hand, if the goal of punishment is retribution, then Peace’s past offenses are irrelevant. Yes, he was at fault for the 2004 brawl at Auburn Hills and other incidents. But he has already been punished for them, and should not be penalized for them again. For a retributivist, what matters…
Today’s oral argument in Arizona v. U.S., arising over Arizona’s immigration law (“S.B. 1070”), provides occasion to address what I believe to be a fateful confusion in federal preemption law. I’ll keep mum about the merits and nuances of this particular (and to my mind quite difficult) case; instead, a few remarks on the broader conceptual and institutional questions that lurk behind it:
The latest discussion on Liberty Law Talk is now available. In this podcast, I speak with John Witte of Emory Law School about his classic work From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition, which was recently reissued in a second edition. The podcast traces the book's invaluable account of the changing legal, social, religious, and political status of the institution of marriage beginning in the late Roman Empire and then considers the revolution in thought launched by the sacramentalization of marriage beginning in the early Catholic Church, which is then carried to completion in the…
In this new installment of Liberty Law Talk, I discuss with renowned legal historian John Witte the recent reissuing of his classic work, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition. I discuss with Professor Witte the evolution of marriage law since the late Roman Empire and the pivotal aspects of the religious, public, and legal duties that were attendant upon marriage in the Roman law and Canon law traditions. The conversation then turns to the increasing role for the state in regulating marriage that emerged with the Protestant Reformation and its own dismissal of marriage…
Songs of Innocence and Experience: I Don’t Like Mondays
The silicon chip inside her head
gets switched to overload
and nobody’s gonna go to school today
she’s gonna make them stay at home
And Daddy doesn’t understand it
He always said she was good as gold
And he can see no reason
Cos there are no reasons.
What reasons do you need to be told?
Tell me why.
I don’t like Mondays
I want to shoot
The whole day down
Oh, for a Tardis time-machine to transport me back to the lost innocent days of 1979, when, for several weeks that summer, Bob Geldof’s song I don’t like Mondays stood at Number 1 in the UK Pop Charts.
Now, the fictitious shooting spree about which he then sang has become only all too agonizingly familiar a phenomenon world-wide.
None to date, however, has produced more fatalities, or been potentially more portentous, than that for having gone on which one fateful day last summer in Norway, Anders Behring Breivik is currently undergoing trial in an Oslo courtroom which opened a week ago — last Monday.
Breivik freely admits that July day having shot dead 69 young people on the small island of Utepo where they had been attending a summer camp held annually there for Norwegian Labour party activists. He had been allowed onto the island, dressed as a policeman and bearing an assault rifle, ostensibly to protect his victims along with the several hundred other young activists whose deaths, he explained in court last week, he also hoped to bring about by causing them to flee in panic into the sea and drown after he began firing.
Earlier that same day, he had provided the pretext for their need of police protection by causing the Norwegian government to declare a state of emergency after he had detonated in the Norwegian capital a large car bomb that he placed outside government offices.
Breivik freely confessed in court last week his original intention had been to confine his killings to the occupants of that building by bringing it down with his bomb. In the event, because, when he arrived there, the parking space he needed for that purpose was already taken, he had been obliged to leave the car containing the bomb where the building was able to withstand the blast, although it did cause eight fatalities, most of them passers-by.
Only for having caused their deaths has Breivik expressed any regret. However, he did tell the court that, had his bomb succeeded in bringing down the government building and thereby killing many of its several hundred occupants, he would not have felt need of having to drive out to Utepo to carry on his killing spree.
Breivik freely admits to all the killings but is pleading not guilty to charges of murder and of terrorism on the grounds that, in carrying them out, he had been acting out of necessity in self-defense. His claims he was obliged to carry out the killings to protect himself, his country, and Europe more generally from the sustained assault on their cultural identity each has undergone in recent times from the multiculturalism to which each has become exposed as result of mass immigration of Muslims. It is because Breivik considers the Norwegian Labour Party the prime movers in effecting their mass entry into his country that he considered its members, even its young ones, to be legitimate targets.