Posted 11:23 AM by Gene

TEXT MESSAGING may ALSO provide relief from EXCEPTIONALLY WORDY BLOGGERS.

OR:

SHOULD CONSERVATIVES BE CONFUSED? I have received some thoughtful replies to my response to Professor Bainbridge's post, Should Conservatives Be Cheerful? including this Reply to Barnett by Professor Bainbridge, and his endorsement of Legislative Tyranny versus Judicial Tyranny by Owen at Southern Appeal. I believe that these post reflect some basic misunderstanding of the position (mine) with which they disagree.

(1) Owen writes:

Barnett's answer is remarkably unsatisfying, because it simply argues in favor of one tyranny over another. Under his standards, American society would effectively be ruled by the courts, who would be vested with the authority to judge which moral standards are legitimate and illegitimate, presumably using the old libertarian standard of the "harm principle."

This statement is mistaken on two counts. First, I do not advocate the "harm principle." Because we are entitled to "harm" others in many ways, this principle is simply too indefinite to distinguish rightful from wrongful conduct. Rather, in my book I argue, as did Thomas Cooley and Christopher Tiedeman, that the proper exercise of the police power of states extends only to protecting the equal rights of others. (NB: Their treatment of "morals" legislation differ.) If a prohibition cannot be justified as means to protect the rights that everyone has from violation then it is improper. Distinguishing rightful from wrongful conduct is the subject of specific doctrines developed in the private law subjects of property, contracts and torts. These doctrines are developed at the state level. There may be many difficulties with my proposal, and I address these difficulties elsewhere, but this and not the "harm principle" is what I favor. This confusion arises because I have written favorably of Justice Kennedy's opinion in Lawrence and he does invoke the harm principle. This is defensible in extreme (and rare) cases in which there is no harm to others whatsoever, in which case a law is problematic. But, as I said, as we have a right to cause all sorts of harms (or negative externalities) on others, the harm principle is insufficient.

Second, it is simply a mistake, but an all-too-common one, to equate legislative power over the citizenry with judicial power over legislatures. Therefore, it is a simple conceptual confusion to equate so-called legislative tyranny with judicial tyranny as if these two phenomena are a symmetrical pair. This error results from unrealistically equating a majority of a legislature with the people themselves, an error the framers of the constitution were careful to avoid. A principal object of the Constitution was to protect the people from legislative majorities, indeed from popular majorities, when motivated by passion or of interest adverse to the rights of their fellow citizens (paraphrasing Madison in Federalist 10). Judicial nullification was thought to be one check among others. The only concern expressed during framing and ratification debates about this check is that it would be too weak, as indeed it has been.

(2) Professor Bainbridge writes:

Contrary to what Barnett seems to believe, I doubt very much that the founders anticipated the sort of expansive claims of judicial supremacy that underlie recent decisions like Lawrence. Certainly, in the generations immediately after the founders the executive branch resisted expansive judicial supremacy.

He then quotes the following from Andrew Jackson:

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government, The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

In my book I address the distinction between judicial "nullification," which the founders strongly endorsed, from judicial "supremacy"--i.e. judicial control over coordinate branches--which they said little if anything about. If you reread Jackson's statement carefully, you will see he is saying that the other branches should not blindly follow or defer to the judiciary with respect making assessments of the constitutionality of what they do. It does NOT say that the judiciary should blindly defer to the other two branches of government when the constitutionality of laws comes before them in a case or controversy. In other words, Jackson does not in any way advocate legislative supremacy, which many of today's judicial conservative favor in the name of democratic majoritarianism. On this issue, I strongly recommend David Mayer's excellent study, The Constitutional Thought of Thomas Jefferson.

(3) Finally, Professor Bainbridge writes:

Confining myself to the blogosphere, however, I would note that Barnett's arguments have not gone uncontested. Barnett asks, for example: "Is discovering and enforcing the original meaning of the Ninth Amendment activism?" Calblog, for one, thinks so: "We ought to respect it, but we can't come to the court to enforce the 9th amendment. Rightfully so, its interpretation belongs in the Congress and statehouses."

If anything is statement of conservative "judicial activism," this is. Calblog speculates about what the Ninth Amendment might have meant. I presented evidence about what it did mean (though other scholars disagree). Essentially the Ninth Amendment stands for the proposition that (as against the federal government) unenumerated liberties are entitled to the same protection as enumerated liberties. Recall for 2 years there was no First Amendment. Freedom of speech, press and assembly were all unenumerated rights. NO ONE contended that the enactment of the First Amendment changed anything with respect to the preenactment status of the rights it enumerated, e.g. claiming that the First Amendment would create legal protections that previously did not exist. Textually, from 1789-1791, any law violating the freedom of speech would have been improper under the Necessary and Proper Clause. Enumerating the right of freedom of speech neither enhanced its previous protection nor derogated the protection afforded other liberties not enumerated. As to the latter, so saith the Ninth Amendment.

If I am correct about this, and about the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, then it is judicial activism to say that unenumerated rights are entitled to no protection from legislative infringement because they are unenumerated. Calblog's assertion of this position is itself "activism" of the exact same species that I identified in my earlier post: conservative judicial activists disgarding text that does not satisfy their conception of "the rule of law." As Calblog puts it: "The fear is I think is that if you want the P&I clause to incorporate already vague 9th amendment issues against the states . . . that's a real stretch. Hitchhiking on an already vague provision." Exactly! He does not like this provision because he thinks it is too "vague," so out it goes from the text. There is no difference between him and activists on the left who don't like, for example that Congress has only a limited power over "commerce . . . among the several states."

I am sure there will be more to say--in particular the alleged prevalence and enforcement of "antisodomy laws," but this post is already too long as it is. Those who are interested in the historical practice should look at this. And then there is this lengthy post by Clayton Cramer. Ahh. So much confusion, so little time.

INDEED. It is true this site ranks 51,529th in Alexa (VERY high for a blog), and I will CONCEDE this writing may be thoughtful to those who can guess what it means (ever LESS reason to trust The Nine Fingers in the Wind) -- but the fact remains, this is 1,337 WORDS, and very few of us have time to read 1,337 WORDS of a WHOLE BLOG, let alone 1,337 WORDS of ONE POST. THIS is why the young engage in TEXT MESSAGING: they have no time for ESSENTIALLY MEANINGLESS WORDS. I've said it before: if only I could BLOVIATE like this, I'd get umpteen gazillion hits a year, but this logorrhea is a WASTE of BANDWIDTH and a CHALLENGE to ONE'S PATIENCE. And WHAT'S TRUE FOR NEWS HACKS APPLIES TO BLOGGERS.

Perhaps in honor of such posts we should call the bloviators thereof VOLOKHEADS, but we will reserve the right to do so for a later time.

P. S. A special DEMERIT to ANDY S., who seems to think such perpetual spouting of words is WISDOM.