::Freespace::

Countdown: In an hour it will be Sunday, June 29, 2003. You know what that means?

Only 9,126 days until state discrimination on the basis of race becomes unconstitutional!

The blues: Sometimes music is the only thing that keeps me going, and I was lucky enough tonight to stumble across a great blues band playing at the Placerville Brew Fest. The lead was the Albert King-inspired Junior Morrow, and with him on guitar was Tom �The Bluesmiester� Feltner, who was even better. I�m quite a blues fan, so it counts for something when I say this was one of the best blues bands I�ve ever heard. They really should be stars someday, if there is justice in the universe.

And man, did I need some blues today. Really hit the spot.

Curious: Hm, something doesn�t seem quite right here� �Liberty finds no refuge in a jurisprudence of doubt.� Lawrence v. Texas, 2003 WL 21467086, **12 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992)).

And yet, when it comes to the state taking people�s property from them, �we have �generally eschewed� any set formula for determining how far is too far, choosing instead to engage in �essentially ad hoc, factual inquiries.� Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine �a number of factors� rather than a simple �mathematically precise� formula.� Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 326 (2002) (quoting Penn Central Transp. v. New York, 438 U.S. 104, 124 (1978)).

O Consistency, thou art a jewel!

Simon & Garfunkel: Roger Friedman writes about how sad it is that Simon and Garfunkel have had such a contentious relationship, and concludes that their �last studio recording was the great song, �My Little Town,� in 1976.� But actually, it�s sadder than that. �My Little Town� was not recorded together in a studio. Paul Simon put down his voice, and sent it to Garfunkel, who put down his voice, by himself, in his own studio. So even that song wasn�t recorded together.

Personal disputes are so tragic. We on the outside can only say �Oh, can�t you guys get along and patch it together?� but we don�t know what�s gone on; we don�t know the pain and the stress and the anxiety.... Surely they would patch it up if they could. But it would be unfair for us to think that it�s just something petty, when it�s probably as deeply troubling for all involved as your personal fights have been.

Fame!: Thanks to Crescat Scientia for the link. Those interested in my views regarding secession should also check out �Liberty And Union: Now And Forever,� (not my title, since I don�t literally believe that) �Why Secession Was Wrong,� and �Freedom And The Wolves.�

Incidentally, Mr. Baude is correct that morality does indeed have a place in the law. It is a crude misunderstanding of libertarianism that says that we think morality shouldn�t be enforced by law. In fact, we do believe in moral laws. We simply believe that it is immoral to stop a person from smoking weed if he�s not hurting someone else. We believe it is immoral to tell people what they may read or watch or listen to. We believe it is immoral to use the power of the state to tear a person from the bed of his loved one when they are harming nobody. We believe that it is immoral to use the state to barge in where it simply has no business being.

More on Lawrence: I have some more comments on Lawrence at the Claremont site. (Scroll down.)

Good points: Jesse Walker has an excellent question about Grutter and Lawrence. And Josh Chafetz makes a good point about those criticizing Justice Thomas for being insufficiently grateful for his alleged affirmative action benefits. (Saw that on Crescat Scientia.)

Friday Five:

1. How are you planning to spend the summer?

I plan on sweltering. It�s easily 90 right now, and it�s 10:45 at night. This is the biggest drawback to Sacramento. Except for the tailgaters.

2. What was your first summer job?

Well, I had jobs that went on during the summer before I went to law school, but it was only in law school that I ever had a job just for the summer. My first was my clerkship at the Institute for Justice, in the summer of 2000.

3. If you could go anywhere this summer, where would you go?

San Diego.

4. What was your worst vacation ever?

A trip to Mexico in February of�was it 1999? I don�t recall. Misery, for a reason I�d rather not go into. (It wasn�t the Sloop John B., but it was close.) Second was a trip to King�s Canyon in 1993, during which I only barely prevented myself from murdering another member of our party.

5. What was your best vacation ever?

I�ve had some really great trips. My few days in Baltimore in 1997 was a lot of fun, and certainly the cruise to the Carribean in 1990 was a dream. But I think the trip with my family through the south in 1995 is my favorite.

One memory: we were driving down alongside the Mississippi River (�through the cradle of the Civil War�) toward Vicksburg. We�d been to Clarksdale to visit the Delta Blues Museum, and were intending to make it to New Orleans. But the clouds were boiling up, and the radio reported that there was a hurricane�Hurricane Erin�on its way, heading straight for New Orleans. My father said that we would keep going, in case the hurricane veered off, which they tend to do. So we ended up in Vicksburg, and had dinner, and had to make up our minds whether to proceed to New Orleans or not. The radio reported the hurricane still heading toward the city, so we decided to turn East, instead, and save Louisiana for another trip. So we headed east through Mississippi as night�and the rain�began to fall. The rain got harder and harder, and soon it was blasting against the windshield like no rain I�ve seen before or since. We finally gave up our drive in Meridian, Mississippi, and my father was able to find us a room�the last hotel room in the city. When we got into the room, we immediately turned on the Weather Channel, in time to hear the forecaster say ��and the hurricane has turned north now and is headed for Meridian, Mississippi�.� The Hurricane dissipated when it hit land, but it left behind it three days of the most gorgeous sunsets I have ever seen�and a fun story of my one experience with a hurricane.

Autism: I just finished reading Oliver Sacks� book The Man Who Mistook His Wife for A Hat, which is an interesting collection of brief case studies of mental disorders affecting the right hemisphere of the brain. Such disorders are especially peculiar because people with such disorders do not realize that they have them. Examples include prosopagnosia, which causes a person to be unable to recognize faces, or even people in general; an extreme example is the man who did indeed mistake his wife for a hat.

But the final chapter was about autism, and it has rekindled my curiosity about autism. Does anyone out there�assuming I haven�t lulled what few readers I have to sleep with my ranting about Lawrence (and believe me, I could go on much longer than I have�)�who can recommend a good book about autism in general? If so, write me and tell me!

Dor�: Just found this page today, collecting Gustave Dor�s illustrations of John Milton�s Paradise Lost. Dor� is one of my favorite artists. Check out this drawing�Satan contemplating the imminent fall of Adam and Eve.

Duh: Libertarians being, of course, utterly stupid people, we �find [it]...difficult to understand� the apparently obvious point that the Tenth Amendment protects the...um...let�s see, the right of states to regulate private, adult, consensual sexual activity in the name of �morality.�

That�s what one of the posts at Claremont�s site says, anyway.

Now, stupid as I am, perhaps I can try to figure out Mr. Lang�s posts. The Tenth Amendment says �The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.� So the question that immediately comes to my mind is, is the power of criminalizing private, consensual, adult sexual activity �prohibited by [the Constitution] to the states�? Since that�s the question we began with, Mr. Lang�s point would be what is referred to as begging the question. We began by asking whether the Constitution prohibits this power to the states; he replies by saying that the Tenth Amendment reserves the powers not prohibited to the States. Yes, but that was never in dispute!

Perhaps it is this ill logic that I find �so difficult to understand.�

Three more points. First, Mr. Lang�s comment begs the question in a more sophisticated way. As I have repeatedly pointed out, the Declaration of Independence declares that the States may only do those things �which free and independent states may of right do.� So reference to the Tenth Amendment solves nothing again, because no State may legitimately claim a power to do something which states may not of right do�and the whole question with which we are concerned is whether the states may, of right, send armed agents of the state into the private bedrooms of American adults to arrest them for engaging in consensual sexual activity. It must first be established that government�which, as the Declaration tells us, exists only �to secure these rights��may do this before a State may claim that power. So, again, Mr. Lang�s reference to the Tenth Amendment solves nothing.

Next, note the conspicuous absence of the Ninth Amendment here. Mr. Lang�s comment rests, again, on the assumption that the residual sovereignty of the states is unlimited, a presumption I addressed in the posts below. The Ninth Amendment speaks of other rights. What are those rights? Among them are the inalienable rights--rights which we cannot give up, even if we claim to do so. They are those rights which belong to us because of our human nature. And I say that they include the right to engage in consensual sexual activity with another adult in the privacy of my own bedroom, whether or not Mr. Lang or Dr. Masugi think finds that activity distasteful!

And the final thing that confuses my poor, addlepated, libertarian mind. Mr. Lang writes (and correctly) that �No where [sic] does this Constitution �empower� the Federal government to �dictate� the morality standards of the �States or the People!��

On a superficial level this is true�and agreed! We say the government has no power to dictate morality standards to me in the privacy of my bedroom. We would agree on this point, if Mr. Lang really believed it.

But on a deeper level, it is not true. The proposition that all men are created equal is a moral claim; an objectively true one, I might add. That claim cannot be legitimately eviscerated by the actions of the state. Although at an early stage of American history the Constitution limited the states only in ways which seem, in retrospect, minor, the addition of the Fourteenth Amendment incorporated the natural rights of all mankind against the state governments. That means that no state may legitimately violate the rights with which we are endowed by the laws of nature and of nature�s God. And that means, no state may enter our bedrooms and drag our loved ones from our beds on the pretext of some attenuated social harm.

Some minor concluding points. Mr. Lang finds it sufficient to refute the right to engage in private, adult, consensual sexual activity to simply say �US AIDS deaths 500,000+.� Then I assume he believes that there is no right to ingest fattening foods, or smoke, or drink, or sunbathe, or drive a car?

Mr. Lang then writes, �to think, a mere 30 years ago, the American Psychiatric Association listed �homosexuality� in its Diagnostic and Statistical Manual under the heading of �Sexual Deviation�.�� Indeed, it did. And only 39 years ago, it was illegal for blacks and whites to intermarry in Virginia. Yet, once again, the principles on which Mr. Lang rests his argument would require him to hold that Loving v. Virginia was wrongly decided. Does he? Perhaps he does�I don�t want to answer for him�. But all I can say is, �Glory be! Now we know, because the Supreme Court tells us so, that blacks and whites have the right to marry each other if they wish!� Oh! The horror!

More on wolves and sheep: In Bowers v. Hardwick, 478 U.S. 186, 204-205 (1986) Justice Blackmun wrote in dissent that �We protect those rights [of privacy, or of family] not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual�s life. �[T]he concept of privacy embodies the �moral fact that a person belongs to himself and not others nor to society as a whole.�� And so we protect the decision whether to marry precisely because marriage �is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.� We protect the decision whether to have a child because parenthood alters so dramatically an individual�s self-definition, not because of demographic considerations or the Bible�s command to be fruitful and multiply.� This would be the sheep�s view of liberty.

Robert Bork, the ultimate conservative, builds his entire jurisprudence on a rejection of this principle, writing in The Tempting of America 121-122 (1990), �That view of the individual and his obligations can hardly be taken seriously.... In [Bork�s] view of morality and responsibility, no husband or wife, no father or mother, should act on the principle that a �person belongs to himself and not to others. No citizen should take the view that no part of him belongs to �society as a whole.�� This would be the wolf�s view of liberty.

What do you think, Thomas Jefferson? �If we are made in some degree for others, yet in a greater we are made for ourselves. It were contrary to feeling & indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This would be slavery & not...liberty.... Nothing could so completely divest us of that liberty as the establishment of the opinion that the state had a perpetual right to the services of all it�s [sic] members. This to men of certain ways of thinking would be to annihilate the blessing of existence....� Letter from Thomas Jefferson to James Monroe, May 20, 1782, in Jefferson: Writings 779 (M. Peterson, ed. 1984). This would be the sheep�s view of liberty.

Lawrence responses: Well, as expected, the conservatives are all screaming about the Lawrence decision. The Claremont guys are busy saying that the Constitution doesn�t make any law illegal, and the National Review guys are throwing around their usual hatred of gays. And here�s George Will, saying that the Lawrence decision will make it impossible for cities to illegalize lap dancing. Yet the Lawrence decision was quite explicitly confined to non-commercial sexual activity. And more, so what if it does? It ought to. The state has no legitimate authority to prohibit lap-dancing. Lap-dancing neither picks your pocket, nor breaks your leg, Mr. Will. It is therefore none of your business. (If cities want to get rid of lap-dancing, as a public good, they may condemn strip clubs, and pay just compensation to them. But that�s a different matter.)

Prostitution�unlike private, adult, consensual sexual activity such as that involved in Lawrence�has always been illegal, and it seems extraordinarily unlikely to me that the Supreme Court would ever be willing to extend the Lawrence rationale to include prostitution. But it should! Prostitution ought to be legal, Mr. Will. If a woman owns her body, she has the right to do with it what she wishes. And if it is done in private, and with consent, what business is it of yours? On the other hand, if she may not�does she own herself? Or do you (or �society�) own her?

Will gets the entire scheme of freedom backwards. He writes, �by what principle is any consensual adult sexual conduct not a protected right?� But the question ought to be, by what principle do you propose to regulate consensual adult sexual conduct? The burden ought to be on you, Mr. Will, for you are the one making the assertion; the assertion that the government ought to interfere in the most private areas of our lives. If it is possible to sustain that assertion, the onus of proof is on you, to demonstrate that it is both moral and wise to do so.

Look�there are people out there, like Mr. Will, who believe that they have a fundamental right to tell other people how to live. And if you say to these people, �No, you have no right to tell Mr. Lawrence whom he may sleep with, and when,� these people get really upset! They believe that they have been denied their fundamental rights!��rights� based on their presumption that they have the right to run our lives. In another context, Abraham Lincoln put it this way:

�The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men�s labor. Here are two, not only different, but incompatible things, called by the same name�liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names�liberty and tyranny.� Plainly the sheep and the wolf are not agreed upon a definition of the word liberty�.�

Lawrence and Loving: I�ve been fascinated all along by the question of how a person could possibly believe that the sodomy law in Lawrence is constitutional�but at the same time think that the Court was right to strike down the miscegenation law in Loving v. Virginia. Justice Scalia tries to explain�or does he?...and the result is incoherent, to me.

After going on at length to prove that people have no right to engage in homosexual activity because it is not �deeply rooted in our history and tradition,� Scalia then writes that �In Loving�we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was �designed to maintain White Supremacy.� A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers�society�s belief that certain forms of sexual behavior are �immoral and unacceptable.� This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner�for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.�

But this doesn�t answer the question. I doubt miscegenation was on the minds of those who wrote the Fourteenth Amendment; and a right of blacks and whites to intermarry was absolutely not �deeply rooted in our nation�s history and tradition.� Yet Justice Scalia says that it was right for the Court to invoke higher scrutiny and strike down the law. This seems to me inconsistent with Scalia�s earlier assertion that �a governing majority�s belief that certain sexual behavior is �immoral and unacceptable� constitutes a rational basis for regulation,� and that he �do[es] not know what �acting in private� means�.� Surely the social consensus in Virginia in 1964 was profoundly against interracial marriages! Surely most whites believed quite emphatically that such marriages were immoral and unacceptable! Surely they believed that children had to be shielded from such things. Yet Scalia says that Loving was right. Does he perhaps believe that the holding in Loving is necessarily entailed by the Fourteenth Amendment, regardless of the intent of its framers? Could it be that he acknowledges that people do not always realize the necessary consequences of the principles they espouse�but that it is the job of the Court to hew to those principles regardless of popular outcry? Could it be that Justice Scalia, by endorsing the Loving case, believes that Fourteenth Amendment jurisprudence leading up to the Loving decision in 1964 �show[ed] an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to [race]�?

It seems to me that practically everything Justice Scalia says in his dissent here would have been said by a dissenter in Loving. Would not such a dissenter (had there been one) have said,

�the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in interracial relationships as partners in their business, as scoutmasters for their children, as teachers in their children�s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as �discrimination� which it is the function of our judgments to deter. So imbued is the Court with the law profession�s anti-segregationist culture, that it is seemingly unaware that the attitudes of that culture are not obviously �mainstream�; that in most States what the Court calls �discrimination� against those who engage in interracial relationships is perfectly legal�. Let me be clear that I have nothing against integrationists, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That those in interracial relationships have achieved some success in that enterprise is attested to by the fact that Virginia is one of the few remaining States that criminalize private, consensual interracial relationships. But persuading one�s fellow citizens is one thing, and imposing one�s views in absence of democratic majority will is something else.�

And yet Scalia believes that Loving was rightly decided! It seems to me that Scalia�s view of Loving v. Virginia is (to coin a phrase) �the product of a law-profession culture, that has largely signed on to the so-called integration agenda, by which I mean the agenda promoted by some racial activists directed at eliminating the moral opprobrium that has traditionally attached to miscegenation.�

In short, it is utterly illogical to denounce a decision simply on the grounds that it entails �a massive disruption of the current social order,� because if that order is unjust�which it was in Texas�it ought to be disrupted, good and hard. That was what the Court did and said in Loving v. Virginia.

My view of Lawrence (Part 3): Further, he is absolutely right that �[t]he present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. �It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.� The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.�

There are two points I would make, however. First, why does this not also apply to those who seek to define their existence through a lawful and gainful occupation? What legitimate interest does it serve to deprive people of their right to earn an honest living, by throwing at them the mass of regulation and taxation that we do? Businessmen are entitled to respect for their economic activities. The state cannot demean their existence or control their destiny by making their businesses a crime, or by burdening them with unfair exactions, penalties, licenses, and regulations. Their right to liberty gives them the full right to engage in their conduct without the intervention of the government. Justice Scalia may rattle the bones of Lochner in an attempt to scare people, but I say, bring it on!!

Second, I do have one complaint, and that is, I am troubled by the stare decisis problem. It is very important to the Court�s legitimacy that it not go around in search of bad precedent to overrule, and it seems to me that they did that in this case. Although I agree a hundred percent with the decision, I think it would have been wiser as a matter of law to have gone through the equal protection argument and not overruled Bowers at this time.

Still, Bowers was wrong, and Justice Blackmun�whose Bowers dissent is my very favorite Supreme Court opinion of all time�has been vindicated!

I will add this for those who do not know me. I am not gay. I find homosexuality distasteful. But if the state can prohibit it, it can prohibit anything, and if I want to be free in the confines of my own bedroom, then I must respect the right of gay men and women to be free in theirs.

Oh, and, earlier, I commented about what I thought was the death knell of standards of review, in Grutter�s bizarre version of strict scrutiny; Justice Scalia�s dissent makes very insightful points on this. (Incidentally, I think Justice Scalia is great, and I love his dissents, even where, as here, I disagree with them with every fiber of my being.)

My view of Lawrence (Part 2): Relying on the Lockean view that sovereignty was limited by the law of nature, the court struck down �the false assumption of legislative omnipotence� Id. at 16. Because in the State of Nature, no individual has a right to steal property from another person, people may not use the government to accomplish the same end. In the Hobbes/Sharpless/Blackstone view, politics is unlimited; in the Locke/Billings view, politics is naturally limited by the moral demands of reason. As John Marshall wrote, �[t]o the legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection� Fletcher v. Peck, 10 U.S. 87, 136 (1810).

So the reason states may not regulate private, consensual, adult sexual activity is because nobody, either state or federal, has any right to regulate that. Or, in Jefferson�s words, �[O]ur rulers can have authority over such natural rights only as we have submitted to them. the rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend only to such acts as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket, nor breaks my leg.� Notes on Virginia, reprinted in Jefferson: Writings 285 (M. Peterson ed., 1984). The same is true of private consensual adult sexual activity.

No state therefore has any legitimate authority to regulate this activity. Do the federal courts have any right to prevent the states from doing so? Yes, under the Fourteenth Amendment, which prohibits states from depriving any person of the privileges and immunities of citizens of the United States. What are these privileges and immunities? They are the rights with which we are endowed by nature, and which we have not chosen to give up (or which we cannot give up even if we choose--that is, they are inalienable). That these rights exist is not honestly debatable: they are among the �other [rights]� referred to in the Ninth Amendment. The state has no legitimate authority to regulate any conduct which does not violate the rights of another person, because, again, this conduct does not pick a person�s pocket or break his leg. (There is an alternative ground of legitimate sovereignty: compact; that is, the provision of public goods by the government, such as the creation of public highways. The people may choose to have government provide public goods. But this--in contrast with legitimate exercises of the police power--requires just compensation to those who are deprived of their rights by that provision, which of course could not be provided in the event that the government were to go about �taking� the right of private association.)

There can therefore be no such thing as a legitimate police power to regulate private, adult, consensual sexual activity, and, were it not for the wrongful eradication of the privileges or immunities clause of the Fourteenth Amendment in the Slaughter House Cases, this would be the proper ground on which to strike down the Texas law. Failing that, the Court has used the Due Process Clause instead (with, I believe, more legitimacy than is usually acknowledged. It deprives a person of due process to seize his property or imprison him for no reason at all, even if one gives him a trial, Kafka-style. It equally violates his due process rights to subject him to trial for a law which is not a legitimate exercise of the police power).

Justice Kennedy is therefore absolutely right that the issue in this case is not homosexual conduct. The issue is �statutes [which] do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.... The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.�

My view of Lawrence (Part 1): As for the opinion itself, I�m bothered by the metaphorical language the Court uses. The �spacial and trascendant dimensions� of liberty, for instance. Although such things are real, and ought to be protected by our governments, the use of obscure terms opens the opinion to criticism, much like the opinions in Griswold and Casey, with their �emanations from penumbras� and �defining one�s view of existence.� These terms sound to critics like sloppy thinking, and indeed they might be, and this bothers me because I believe there is something real behind them.

Take emanations from penumbras, for instance. An emanation from a penumbra is a complicated and silly way of saying a logical implication. The Constitution says X, and Y, and this necessarily implies Z. To put it in bizarre terminology accomplishes nothing, and only looks like mumbo-jumbo.

I believe that there is an inalienable, natural, indefeasible right to engage in private, consensual, adult sexual activity. No government on earth has any right to interfere with this, including the states, or the federal government.

The Declaration of Independence declares that states may only do those �things which free and independent states may of right do.� All states are limited by the natural law, and cannot rightfully exceed that. This applies to both states and the federal government. While Blackstone held that Parliament�s sovereignty was unlimited, and many American lawyers argued in the 1850s that this unlimited sovereignty was transferred unchanged to the states, St. George Tucker explained in his edition of Blackstone that this was not the case in a nation based, like ours, on natural law. The American Revolution, Tucker wrote, �has formed a new epoch in the history of civil institutions by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers� like Locke. (1 St. George Tucker, ed., Blackstone�s Commentaries App. Note A at 4 (New York: Kelly, 1969) (1803).)

Thus, as Madison explained, �Whatever be the hypothesis of the origin of the lex majoris parties, it is evident that it operates as a plenary substitute for the will of the majority of the society, for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, whenever vested or however viewed.� (Sovereignty (1835) in 9 Writings of James Madison 570-571 (G. Hunt ed., 1910) (emphasis original)).

The debate between the Blackstonian view and the Lockean view of state sovereignty takes up a large portion of my forthcoming article on eminent domain. There I focus on two cases from the 1850s which demonstrate this conflict. The first, Blackstonian case, comes from Pennsylvania. In Sharpless v. Mayor of Philadelphia, 1853 WL 6339 (Pa. 1853), the state Supreme Court upheld a law which allowed cities to invest in private railroad corporations. This law was challenged on the grounds that it required a transfer of property from private parties to other private parties--it was essentially legalized plunder. Opponents of the law echoed Justice Chase�s opinion in Calder v. Bull, 3 U.S. 386, 388 (1798): free government by its nature prohibited the majority from using the law to steal property from the minority. But the Pennsylvania Court rejected this argument. In the words of Justice Black:

In the beginning the people held in their own hands all the power of an absolute government. The transcendant [sic] powers of Parliament devolved on them by the revolution. Antecedent to the adoption of the federal constitution, the power of the states was supreme and unlimited. If the people of Pennsylvania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat.... The federal constitution confers powers particularly enumerated; that of the state contains a general grant of all powers not excepted.... The federal government can do nothing but what is authorized expressly or by clear implication; the state may do whatever is not prohibited (1853 WL 6339 at *12).

Thus the state did have the power to take property from private parties and give it to other private parties if they chose. Contrast this with Billings v. Hall, 7 Cal. 1 (1857), an early California case which struck down the �Settler�s Law� of 1856. The law held that if a landowner discovered another person on his land, and sued for ejectment, he was liable to the trespasser for the value of any improvements that had been put on the owner�s property, even though the owner had not given permission for such improvements. If the owner failed to pay, he forfeited the land to the trespasser. The court struck this down as an �attempt[ ] to take the property acquired by the honest industry of one man, and confer it upon another� Id. at 10, which was beyond the power of the state. Chief Justice Murray wote:

It has been erroneously supposed, by many, that the Legislature of a State might do any Act, except what was expressly prohibited by the Constitution. Whether there is any restriction upon legislative power, irrespective of the Constitution, is a question upon which ethical and political writers have differed. Many of the ancient writers have based this claim of omnipotence upon the doctrine of the absolute and sacred character of sovereignty, assuming that princes bear rule by divine right, and not by virtue of the expressed or tacit consent of the governed.... Whatever doubt may have formerly existed on this subject, the question has been settled, by an overwhelming weight of authority, in this country, that the spirit of free institutions is at war with such a principle. Id. at 10-13.

Lawrence: This case is a great example of the value that an amicus curiae brief can have. The history of sodomy laws that the Court goes into was discussed at length in the Cato Institute�s outstanding amicus brief, which argued that historically, laws against sodomy were not used to criminalize wholly private, consensual, adult sexual activity.

D�oh: Looks like Nike v. Kasky was dismissed for some reason. That�s bad.

Explanation for non-lawyers: If you�re wondering why it takes so long to find out what has happened at the Supreme Court�while you can find out instantly what happened in Congress or at the White House�here�s why. The Court decides cases (called �announcements�) on Mondays, and sometimes will make its final announcements of the term on another day (as with today). Announcements begin at 10am eastern time.

The justice who authored the opinion reads a brief version of the opinion from the bench�not the whole thing with all the case cites, but enough for you to get it. Usually they say, �Justice Soandso has written a dissenting opinion,� but they don�t usually read dissents, unless the dissenter is really pissed. (Justice Blackmun read his great Bowers v. Hardwick dissent from the bench. Justice Breyer, I think, read his much-less-than-great Zelman dissent from the bench.)

Not only are cameras or cel-phones prohibited on the courtroom, but people are not allowed to take notes�a policy due, I�m told, to Chief Justice Burger�s hatred of the press�and if you leave, you can�t come back in to hear the next case announced. So reporters in the courtroom can�t race outside to broadcast the news and then come back in. And they can�t write down what�s going on, in order to race out and give you a quick explanation.

But downstairs at the Court, there�s a press room, where they hand out copies of the decisions as they�re made. The person in charge of these copies waits for a phone call to say �They�ve announced the decision in Smith v. Jones,� and then the person hands out the hardcopies of Smith v. Jones to those waiting in line. Reporters and anyone else can stand in line�you too may stand in line downstairs at the United States Supreme Court, if you would like to. I�ve done it! It�s�not all that exciting.

Then, of course, there�s the trouble that these opinions can sometimes be very long and complicated, so a reporter can�t really say much more than �The Supreme Court has struck down a law�� because they have to read the opinion first�or rather, get a lawyer to read it first, since reporters aren�t lawyers (or much of anything, for that matter). That�s why you hear the outcome, and only get the explanation gradually over the next few days. It�s law, not politics�ideally.

Update: It�s taking longer than usual to get copies of the opinions on the Internet. That means someone must be reading a dissent from the bench.

Update: Yup. Justice Scalia, in Lawrence.

Judicial conscience, cont�d: A federal district judge in New York has resigned in protest over mandatory sentencing. ��Congress is mandating things simply because they want to show how tough they are on crime with no sense of whether this makes sense or is meaningful,� Judge John S. Martin said�. �Sentences should be just. We shouldn�t be putting everybody in jail for the rest of their life��.�

This just in: New Zealand legalizes prostitution; sky fails to fall.

Supreme Court: Looks like our side has won Lawrence.... I am very curious to see how Thomas decided.

Update: It�s 6-3�.

Update: D�oh! Thomas dissented. How disappointing. Apparently you have a natural right to raise your children as you please (Troxel v. Granville) but not a natural right to be free from government control in private, consensual, adult sexual activity.

Fame!: Thanks to The Buck Stops Here and So Cal Law Blog for the links.

Obloggerated: Blogger was down, no doubt oiling the squirrel-wheel that powers its servers, so I apologize for my slowness. In the meantime, I discovered that it is summer. There is no airconditioning in the Unabomber Shack (as my colleagues have taken to calling my lovely little house in Placerville), so summer nights have that slow, thick quality that they had in my childhood, when sleep was light and the nights seemed suspenseful. It doesn�t feel suspenseful now. Instead, the hot night calls for staring out the window meditatively, feeling every heartbeat, listening to Miles Davis turn some corny love ballad into the very portrait of my soul. It feels like Edward Hopper paintings and quiet smiles at memories of girls who have moved on. It�s a melancholy time; starlight and not much else. Makes you want to take up smoking just so you�ll have the glowing ember in the twilight, when everything looks bluer somehow.

Douglass: Okay, you want the inside scoop on Justice Thomas� quote from Frederick Douglass? Here it is�though it�s not worth much, I suppose. When I was in high school, I was on the Academic Decathlon team, and one of the events in Academic Decathlon is the �Super Quiz,� which is run like a game show. For the Super Quiz, they give you a package of information you�re supposed to know, and, as luck would have it, in 1994, the theme of the Super Quiz was �documents of freedom,� and the package included things like the Declaration of Independence and the Tienanmen Square statement, and stuff like that�including the Frederick Douglass �do nothing with us� speech.

I was quite taken by this speech�being then, as I am now, an opponent of the welfare state, and believing, then as now, that all men are created equal, and that the state should not interfere or �help� anyone. So I kept this quote.

When the Supreme Court granted cert. in Adarand during my second year in law school, I went to Prof. Eastman, with whom I worked in Chapman law school�s Liberty Clinic, and said I wanted to write an amicus brief in Adarand. I wanted to do so precisely to get this Frederick Douglass quote in the brief. Sentimental, I guess, but I loved the idea. Well, we wrote that brief, including the quote, but then we got dismissed in Adarand, without reaching the merits.

So we re-wrote the brief for the Grutter cert. petition, and then Prof. Eastman re-wrote it for the merits brief, himself, and kept that quote in there, just to get it in front of Justice Thomas� eyes, so that he might quote it in an opinion. And he did. So, although of course Justice Thomas is likely to have already been aware of the quote, I insist on taking (along with Prof. Eastman) at least half the credit for that. If you would like to read the whole Frederick Douglass speech, you can read it online here.

Now, as to Douglass. I�m writing a paper on �The Constitutional Thought of Frederick Douglass,� right now. Here�s a brief excerpt of the current draft:

�[Douglass believed that] government intervention was an insult to the dignity of blacks themselves; a badge of inferiority. �The black man is said to be unfortunate. He is so. But I affirm that the broadest and bitterest of the black man�s misfortunes is the fact that he is everywhere regarded and treated as an exception to the principles and maxims which apply to other men.... Necessity is said to be the plea of tyrants.[] The alleged inferiority of the oppressed is also the plea of tyrants.... Under its paralyzing touch all manly aspirations and self-reliance die out and the smitten race comes almost to assent to the justice of their own degradation.� The suggestion that blacks could not survive on their own was, to Douglass, precisely the sort of thinking which had led not only to slavery but to segregation and to the obstacles placed in the path of his own career, and even his own friendships. Frequently, Douglass noted that white segregationists did not object to seeing a black man in a restaurant or in a public place where only whites were permitted, so long as he was a servant: it was not the color to which the whites objected, but the suggestion that blacks and whites could be social equals. The same suggestion lay at the heart of projects intended to provide government aid to freed slaves. �We are not only confronted by open foes, but we are assailed in the guise of sympathy and friendship and presented as objects of pity,� he said. But �it is this gigantic representation [that the former slaves could not succeed without government help] to which I object, I deny that the Negro is correctly represented by it. The statement of it is a prejudice to the Negro cause. It denotes the presence of the death dealing shadow of an ancient curse.� Douglass believed that individual achievement and self-reliance alone could create self-respect--the vital quality which slavery had sought to obliterate. Government paternalism would necessarily undermine that self-respect, and thus keep blacks in a second-class status. �No People that has solely depended upon foreign aid, or rather, upon the efforts of those, in any way identified with the oppressor...ever stood forth in the attitude of freedom.�

�But none of these deleterious effects of aid, accounted Douglass� primary concern. Here, as in the issue of school segregation, Douglass� overriding objection to racial discrimination was its immorality. �Prejudice against color [is] rebellion against God.� It rejected the fundamental principle that individuals should be judged by their own individual achievements rather than by their color. �The only excuse for pride in individuals or races is the fact of their own achievements. Our color is the gift of the Almighty. We should neither be proud of it nor ashamed of it.� He thus rebuked those who sought to patronize only black-owned businesses. �Whether he should be supported should depend upon the character of the man and the quality of his work. Our people should not be required to buy an inferior article offered by a colored man, when, for the same money, they can purchase a superior article from a white man.� Here, as elsewhere, Douglass sounded a note that would be taken up by Martin Luther King almost a century later. (Certainly the culminating moment of Douglass� repudiation of racial distinctions came when married a white woman, Helen Pitts, in 1884.)�

Forthcoming: Eric Clayes asks �In what respects should the Declaration have authority in constitutional interpretation?� Well, I provide some answers in my article �Liberal Originalism: A Past for The Future� (a review of Scott Gerber�s recent book on the Declaration of Independence), which is forthcoming in a prestigious law journal�s next issue. More details once I�ve signed the contract.

Majesty: By the way, I agree wholeheartedly with Greg Goelzhauser�s eloquent comments on the loveliness and mystique of the Supreme Court. �I just want everyone to understand her amazing beauty before attempting to get intimate with her.� Indeed. The Court is a truly majestic institution; the only branch of the government which has retained the dignity of its founding.

I have been privileged to attend the Court only once, when I was working in D.C. three years ago; June 26, 2000. I got up at 4 am and walked across town to the Court to be in time to hear announcements. Although I arrived somewhere around 5, I was eighth in line! I sat on the steps till 10, when they let you in, and I was seated on the left side of the courtroom (that is, on Rehnquist�s right). Sure enough, Justice Thomas just sat there staring at the ceiling�. I remember the sound of the gavel was remarkably loud, and everyone stood instantly, in a single motion. The justices came out�Rehnquist with his yellow stripes on his sleeves�and they read four cases that day. I only remember two: Dickerson (which upheld Miranda, and which I�ve come to regard as the worst-reasoned Supreme Court decision ever; even worse than Grutter)�and California Democratic Party v. Jones, which struck down the California open primary. Then they got up and went behind the curtain, and I could just see Justice Thomas take off his robe�he wore bright red suspenders underneath.

When I criticize the Court in passionate terms, as I tend to do, particularly after a travesty like Grutter, I do so as one reprimands a loved one. I would not be so disappointed, if I did not respect her as I do; I would not speak so harshly, if I did not love her so much.

Parodies?: On the way home from work, I heard a story on the news that gives me a better hypo than my silly speech restriction infra. Apparently, Hispanics are now the largest minority group in the United States. Yet a new study reveals that they are underrepresented on television shows. Only about 3 percent of screen time on the six major networks during primetime feature Hispanic characters.

Now, what if Congress were to pass a law that said �From now on, television shows must have at least 13.5 percent of their characters be Hispanics, and if the networks don�t obey, we�ll revoke their FCC licenses and prohibit them from broadcasting�? What about the Grutter opinion would prevent this? Under Grutter, racial head-counting is a compelling state interest, and when it comes to the narrow tailoring, well, so long as there are a bunch of other factors involved in issuing a license�and of course there are; the television show can�t be obscene, for instance�then wouldn�t this satisfy Grutter-style �strict scrutiny�?

Fame and Grutter: Thanks to riting on the wall for the link. I�ve fixed the permalinks now, I hope.

I don�t think that it is hyperbole to say this is the most important race case since Brown. It�s certainly the most important since Bakke, and I think it at least as important as Brown, because this is the first time that the Court has unambiguously said that the state has a �compelling interest� in choosing between the races. That�s a very extreme statement, whose ramifications are impossible to imagine right now. 25 year time limit or no, it will be a long time before we overcome this decision. I�ll repeat it again, because the magnitude of this statement is really quite extreme: the state now has a �compelling interest� in ensuring �racial diversity� (a concept not very clearly defined) by choosing students on the basis of their race. The Court has not made a statement like that since Plessy.

Thanks also to the Curmudgeonly Clerk (here�s another actual photo of the Clerk,* that I snapped with a hidden camera!) for the link.

Allow me to elaborate for a moment on the critical injury that I think has been delivered to strict scrutiny. In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the Court held that strict scrutiny applied to federal racial set-aside programs�a holding I would have thought uncontroversial. Justice O�Connor, however, asserted that strict scrutiny is �not fatal in fact.� Id. at 237. The Court then remanded to the tenth circuit, which sent it to the District Court. The District court held that no race-based preference can ever pass strict scrutiny.

I believe that is correct (as a matter of precedent, that is. I don�t think the concept of varying levels of scrutiny is coherent, applicable, or constitutional in the first place, but let�s assume for a moment that it is). The idea of strict scrutiny is that the law in question must actually advance the interest asserted, no more and no less. That means, no false positives and no false negatives�the law must do X and nothing else, or, if it does something else, only the most insignificant, and not unconstitutional, �else.� But if a law is intended to do X, and it does X but also does Y, then it is not �narrowly tailored.� Also, strict scrutiny requires the asserted interest to be �compelling,� not just �legitimate.�

Now, the District Court, on remand in Adarand, 965 F.Supp. 1556 (1997), said �I find it difficult to envisage a race-based classification that is narrowly tailored. By its very nature, such program is both underinclusive and overinclusive. This seemingly contradictory result suggests that the criteria are lacking in substance as well as reason. The statutes and regulations governing [a racial preference] are overinclusive in that they presume that all those in the named minority groups are economically and...socially disadvantaged. This presumption is flawed, as is its corollary, namely that the majority (caucasians) as well as members of other (unlisted) minority groups are not socially and/or economically disadvantaged. By excluding certain minority groups whose members are economically and socially disadvantaged due to past and present discrimination, the [preference] program is underinclusive.� Id. at 1580.

That�s exactly right. A racial preference program will necessarily benefit some who are not legitimate beneficiaries, and punish some who are not rightly liable to punishment. So no race-based program can survive strict scrutiny. The program in Grutter makes Barbara Grutter pay the price of her ancestors� racism�no, not even her ancestors, but the ancestors of other people who share her skin color! This cannot be narrowly tailored, by its very nature. (Indeed, I would go farther and say that because racism is irrational, a racial preference program cannot even survive rational relationship scrutiny, since it cannot be �rationally related� to anything legitmate.)

Anyway, after the District Court said this in Adarand, the Tenth Circuit once again reviewed it, and reversed the District Court, and held that the racial preference survived strict scrutiny! Sub nom. Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir. 2000). In doing so, the Court repeated the phrase �strict scrutiny is not fatal in fact� eleven times�like a mantra that somehow magically transformed the analysis from a staff into a serpent. I call this Adarand-cadabra!

The Grutter decision invokes the magic word, Adarand-cadabra! On one hand, racial preferences must be narrowly tailored�but now that means that a program can be overinclusive and underinclusive. The Court says that strict scrutiny applies�but it defers to the decision of another administrative body. It says that strict scrutiny requires a �compelling� government interest�and declares that racial head-counting is such an interest�but there is no explanation of why, or what criteria are used to determine when an interest is compelling, or legitimate, or what the difference is.

Now, rational basis scrutiny, on the other hand, is supposed to permit overinclusiveness and underinclusiveness. A law doesn�t have to only serve the legislature�s goal, and it doesn�t even have to serve it well. Some decisions even suggest that the law doesn�t have to serve the intended goal at all, and yet still survive rational basis scrutiny. Rational basis scrutiny thus lies somewhere between �anything goes� and �shocks the conscience.� Yet in Romer and Cleburne and some other cases, the Court has applied meaningful scrutiny, requiring the law to actually serve some the asserted interest.

Some people say that Romer and Cleburne stand only for the proposition that ire against some disfavored group is not a legitimate interest. We know that�s not the case for two reasons, now. First, because now ire against a disfavored group is not only a legitimate, but a compelling interest! And second, because if you read Romer and Cleburne, and even the recent Hillside Dairy case, the Court actually examines whether the law can reasonably be said to advance the asserted interest. It doesn�t invent new interests; it doesn�t turn a totally blind eye to the question of whether the law serves that interest. Of course, I think this is a good thing, since I believe that every single law on the books should be subject to strict scrutiny. But look at how this erodes the concept of rational basis�which was created in order to let legislatures do whatever they felt like.

So on one hand, we have strict scrutiny being diluted with deference and overinclusiveness and underinclusiveness, and on the other we have laws being tested for their effectiveness under the rational basis standard! It�s just as Roger Pilon describes; varying standard of scrutiny have come to resemble the �medieval geocentric Ptolemaics drawing epicycle upon epicycle to ward off the onslaught on the heliocentric Copernicans.� (When you add this to the chaotic standards already being applied in the campaign finance cases...�is it speech? Sorta. Is it contract? Sorta. Is it strict scrutiny? Hell no!)

Now, how will we apply strict scrutiny in the next case that demands it? Suppose the state gives unlimited discretion to the chief of police to issue or deny permits which allow a person to give political speeches on sidewalks in downtown on weekdays. The city says it�s a traffic-control measure, but the law only applies to political speeches. Does that survive strict scrutiny? I take you now live to the Supreme Court of the United States...

�O�Connor, J., delivered the opinion of the Court.

�Traffic control is a compelling state interest. Why? Because we say so. See Grutter v. Bollinger. Under Grutter, we first defer to the city�s decision that traffic control requires this prohibition of political speakers. Just as the law school was more knowledgable about how to run a law school, requiring us to defer to their decision in Grutter, the city here is more knowledgable about how to control traffic, so we defer to them. Secondly, although the law is underinclusive, in that it doesn�t apply to religious speakers or advertisers, the discretion given to the chief of police insulates this statute from narrow tailoring considerations. In Grutter, we held that a racial preference was narrowly tailored because race was �used in a flexible, nonmechanical way.� Thus considerations of race (which had formerly been thought off limits for government to consider) could be taken into account if sufficiently mixed with various undefinable �factors.� Just as the law school in Grutter gave �substantial weight to diversity factors besides race,� so, too, the statute here gives substantial weight to other factors, such as whether the police chief likes your face. Sure, unreviewed discretion to control another person�s political speech is blatantly contrary to the fundamental principles of American law, but here it�s mixed with enough undefined obscuring factors to hide that fact from our eyes. So, following the now deferential standard of �strict scrutiny�....�

Okay, this is hyperbole. But not much. It�s very hard to parody something that is already a parody of itself.

The point is, you cannot make an irrational, over- and under-inclusive factor suddenly legitimate by mixing it with other factors, and you cannot make a scrutiny strict by deferring. Grutter will permit race-based hiring practices by government agencies, then in public school placement, the granting of business licenses, and use permits. It will then spread beyond the context of race to other formerly �fundamental� rights and �suspect� classes. And state courts, often lazy enough to rely on federal cases rather than developing an independent state constitutional theory, will rely on Grutter to uphold racism at the state level. Justice Thomas is absolutely right: �Contained within today�s majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected�racial segregation.�

--
*-Not an actual photo.

Outhouses: SW Va. Law Blog points out this article about outhouses which mentions the ventilation of Jefferson�s outhouses at Monticello. Much more interesting are Jefferson�s two outhouses at another house he built, called Poplar Forest, not far from Lynchburg. Jefferson was long fascinated by the use of the octagon in architecture (as you can see from the �nickel side� of Monticello), and he designed Poplar Forest as an octagon�with two octagonal outhouses, one on each side.

Foner a phoney?: Interesting article here on Philip Foner as a plagiarist. (Saw it on Arts and Letters Daily.) Not long ago I purchased Frederick Douglass: Selected Speeches And Writings�which is condensed from a collection of Douglass� works which Foner edited�and was quite surprised at what I got. It�s very nice to have a single-volume collection of Douglass� works, and I use it regularly. But aside from the typos and spelling errors on practically every page, it is interesting what has been left out of the collection. Not a single one of Douglass� many denunciations of organized labor, for instance, is to be found here. Nor the speech Justice Thomas quoted in his Grutter dissent this morning. Fortunately, Blassingame is producing (slowly) a much more thorough and less cleverly edited collection now.

Again, while it�s annoying that Selected Speeches And Writings is carefully cleansed of Douglass� more anti-Marxist writings, I do highly recommend it, since it�s the only single-volume collection of Douglass that is available.

�Hey, wait a second! How can a man be a plagiarist if he doesn�t believe in the legitimacy of private property? Shouldn�t the work of his colleagues belong in common to all? Foner can�t be a plagiarist, because he�s not stealing; he�s just redistributing!

Grutter: No doubt by now you have read and heard plenty about the Grutter decision, and there is probably little that I can add, so I�ll just post some brief thoughts.

In my earlier blog post, I mentioned that the Court has rarely explained what is, and what is not, a legitimate state interest. In Grutter�quite shockingly�the Court has declared that maintaining a �racially diverse� student body is a compelling state interest. It says this with no explanation of what constitutes a compelling state interest, or what the difference is between compelling and legitimate state interests, or how racial diversity can leap from being barely tolerated�where it was before�to the position of a compelling state interest. It just asserts that racial diversity is a compelling interest, and that�s that.

That is the most important part of the decision, and the one that will make this case extremely important in American history�probably the most important race case since Brown v. Board of Education. And we, who believe that the state has no business treating people differently on the basis of race, are on the losing end, big-time.

Now, the more interesting things. First, the Court critically wounds, if it does not entirely kill, the concept of strict scrutiny. This is interesting, because the Court has already severely weakened the concept of rational basis scrutiny. In Romer v. Evans and some other cases, the court has used rational basis to strike down a law as unconstitutional; now they�ve used strict scrutiny to uphold a law. That�s very strange to begin with, and on top of that, the court has �deferred� to the law school�s decision, which it is never supposed to do when using strict scrutiny. That is very odd, and Justice Kennedy�s dissent attacks that specifically.

Secondly, the Court creates an (illusory) 25-year time limit on racial preferences. The big problem in these cases has always been that if �diversity� is declared a legitimate state interest, then race will be a legal factor in American political life forever. In the previous cases, the idea has always been, well, racial preferences are necessary to remedy the legacy of slavery and segregation, so, wrong as it may be, at least it�s temporary. Now, the Court says that racial nose-counting is, in and of itself, a compelling interest. If that�s so, that isn�t going to go away�it would mean that states may discriminate forever, not just to redress segregation, but to �keep things diverse.� Well, here, the Court has tried to avoid that problem by saying that in 25 years, the racial disparities will disappear, and race-based admissions will no longer be allowed. That sounds great, but it's just a hallucination. 25 years from now, the Court will say, �well, progress has been slow, things haven�t gone as fast as we thought....� so that�s just craziness. Not to mention the point Justice Thomas makes, that it�s bizarre indeed to suggest that something that is constitutional now will suddenly turn unconstitutional on June 23, 2028 at 10 A.M. Eastern time.

Anyway, when you get time, read Justice Thomas� dissent. It�s brilliant�particularly the magnificent quote from Frederick Douglass (wonder where he got that?), and it smoulders in majestic and intelligent fury. I predict it will take place with Field�s Slaughter House dissent, and Harlan�s Plessy dissent, and Blackmun�s Bowers dissent, as one of the great dissents in the Court�s history.

Oh, and it�s Justice Thomas� birthday, today.

Update: Boy, this just figures, doesn�t it? Glad I didn�t throw my vote away.

Grutter: Looks like I was right.

Update: No, I was wrong, and perhaps disastrously so. From a quick glance, it looks like the opinion is about as bad as we could expect. Part of it does focus on narrow tailoring, but it apparently holds that racism is a compelling state interest.

The war on Wal-Mart: This is very bad news, which I haven�t seen mentioned on major news sources. The National Labor Relations Board has ordered Wal-Mart, for the first time, to recognize a union at one of its stores, in Jacksonville, Texas.

The United Food and Commercial Workers, the major grocery store union, declared war on Wal-Mart some years ago, and has been going about it hammer and tongs. They narrowly failed to get a law passed in California which would have practically prohibited Wal-Mart Superstores in the state�although they did get a measure passed which made it harder for cities to give Wal-Mart incentives to move into the community. Cities in Nevada and New Mexico have passed ordinances which have kept Wal-Mart Superstores out. (The Superstores are the Wal-Marts with grocery stores in them; they�re called �big box retailers� among the in-crowd.)

Wal-Mart is the largest corporation in the world, and employs more people than anyone other than the U.S. government. It is the largest employer of women and minorities. It provides jobs in rural areas, and does this all while providing plentiful goods at affordable prices. These are bad things, in the UFCW�s eyes. They believe that you should be forced to pay more for products, because they believe that Wal-Mart should be forced to employ their members, and inflated wages. Of course, they way they put it, the UFCW is defending smaller neighborhood stores from �unfair competition,� and �protecting our neighborhoods and our communities.� Protecting us, that is, from 35 cent sodas and $5 picture frames.... Shouldn�t we be protected instead from the unfair political deals of organized pressure groups?

Bees: Ah! They�re defending themselves somehow! (Little Simpsons quote there).

Public use: Good article on eminent domain law. (Saw it at Claremont Institute).

Ayn was right!: Did you know this about book sales in England? It reminds me of that scene in Atlas Shrugged, where Balph Eubank says there should be an Anti-Dog-Eat-Dog Rule for literature. I thought it was just Rand playing reductio ad absurdam. Who knew it already existed?

(Oh, and, Note to Samizdata: It may be bad political policy to boycott the French, but�these people eat snails. Snails, Samizdata. I mean�they eat them. Really.)

Laissez-Faire City Times: Has been renamed and reincarnated, and you can access it here. Thanks to Jim Antle for pointing it out.

Privileges or Immunities: An excellent brief article on IJ�s recent New Orleans book-ban case. (Saw it on Hit & Run.)

My mentions: Did a Yahoo search for my name the other day, and came across a couple things. First, the Varley website mentioned here is not mine, although I did write the timeline of Varley�s short stories, which is on that site.

Also, I noticed this site, which quotes one of my articles on the Civil War�a passage I knew would stir some emotions, when I wrote it. I wrote, �Was it worth 600,000 deaths to free the slaves? Absolutely yes. It would have been worth it at twice that price; indeed, it would have been cheap at a thousand times that price. It would have been cheap if the war had lasted until the present day. It would have been cheap at the price of oceans of blood and mountains of bones.� and the author responds that this is a �death-cultic perversion of the Christian doctrine of the Crucifixion�. For the life of me, I can't see it as anything more than death-cultic insanity.�

Well, of course, when read in context, my point is much clearer: I was arguing that we must think of the Civil War logically, and not be distracted by the atrociousness of the war itself. So many Doughface Libertarians focus on the latter, while ignoring the former, that they are easily misled. I then went on to say that if we insist on focusing on the atrocities, I believe that the atrocity of slavery is far worse than any of the atrocities committed during the war, or than the war itself. And it was on that point that I allowed myself to wax rhetorical a little. Do I think that death is preferable to slavery? Yes. But of course, the Civil War cannot be thought of in those terms�no war can. It wasn�t as if someone came to us in the 1860s and said, �I propose an exchange; you give up 600,000 deaths, and we�ll give you the end of slavery.� So saying that it was �worth� 600,000 deaths to free the slaves is really saying nothing important�or, it is saying nothing more than when we say that defeating Hitler was �worth it��a proposition I cannot imagine denying. Is it �death-cultic insanity� to say that it was worth the horrors of Normandy to close the Nazi prison camps? Is it �perversion� to say that fascism was so awful that, as terrible as World War II was, it was actually preferable to the perpetuation of fascism? I don�t think so, and I don�t think it any different to say that, awful as the Civil War and its aftermath was, it was preferable to the perpetuation of slavery, and whatever horrors might have followed it, had the Confederacy won that war. (I explained these points in a follow-up article, which, unfortunately, has not yet been published. I�m still hopeful it will appear soon, however.)

Also, keep in mind what I was responding to�the assertion that a child in modern America is in a worse situation because of the Civil War! When Joseph Sobran made that assertion in his article, he was making the same error that so many make�a really terrible error, if you think about it: he was thinking of the war solely from the perspective of white Americans! And that�s why I then went on to imagine life for a black child today, had the South won the war, and concluded that the war was worth it.

Finally, keep in mind that Sobran not only agreed with my assertion that it was worth 600,000 deaths to free the slaves, and even multiplied it, and said that �600,000,000,000 deaths would have been a cheap price to free a single slave.� And I hope that he was not being sarcastic.