::Freespace::

Miss World: Well, she�s pretty, I suppose, but nowhere near as beautiful as a Maxim girl. I think it�s proof of the Arrow Impossibility Theorem.

You�ll do something, Mr. Rearden!: Is Palm Springs anti-business? Well, �By the time [Brian Stewart] went through the city�s planning process, his contractor�s estimate was $213,974.25, not including engineering, architecture and permit fees.� Stupid businessmen. Why don�t they stop whining? Don�t they realize these regulations are for the common welfare?!

Dickens: Well, it�s Christmas, and time once again for Charles Dickens�. It�ll come as no surprise to anyone that I am no fan of Dickens. But I�ve pointed out before that there�s a great passage in A Christmas Carol where Dickens attacks Sunday closing laws! Today, at a bookstore, I found the newly published Annotated Christmas Carol, and it points out that Dickens� campaign against Sunday closing laws extended to his publishing a pamphlet called Sunday Under Three Heads, and a chapter in American Notes, in which he wrote of the Blue Laws

in virtue whereof, among other enlightened provisions, any citizen who could be proved to have kissed his wife on Sunday, was punishable, I believe, with the stocks. Too much of the old Puritan spirit exists in these parts to the present hour; but its influence has not tended, that I know, to make the people less hard in their bargains, or more equal in their dealings. As I never heard of its working that effect anywhere else, I infer that it never will, here. Indeed, I am accustomed, with reference to great professions and severe faces, to judge of the goods of the other world pretty much as I judge of the goods of this; and whenever I see a dealer in such commodities with too great a display of them in his window, I doubt the quality of the article within.

Well put, Chuck!

Probative value of religion?: Unlearned Hand says �I�m sure all the atheists out there in the blogosphere would be glad to read Federal Rule of Evidence 610�: �Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness� credibility is impaired or enhanced�.��

Sure, it�s nice not to be discriminated against. But�why not? As a matter of policy, I�d vote for this rule. But on a theoretical level, I don�t think it makes sense. Imagine:

Attorney: �Now, Mr. Jones, you say you saw my client pull the trigger on the night of the 19th?�

Witness: �Yes, I did.�

Attorney: �Mr. Jones, do you believe the film Dumbo to be a true story?�

Witness: �Absolutely. Dumbo really exists and he flies over my house every night around 10. Every evening after dinner I go up and hang peanuts on the weathervane for him.�

Would that not detract from the witness� credibility? If so, what�s the difference between that, and a witness who believes that an invisible man lives in the sky making good things happen to good people and bad things happen to�well, good people?

It�s considered terribly impolite�indeed, absolutely improper�to show disrespect for people�s religious beliefs, and they certainly have a Constitutional right to have those beliefs respected by the government. But foolish ideas ought not be curtained off from ridicule simply because a person calls them �religious� ideas. And if a person�s embrace of foolish ideas is probative of his credibility as a witness, then why should it not be open to a court�s consideration?

Of course, we bar all sorts of epistemologically legitimate evidence for policy reasons�for instance, the attorney-client privilege prevents inquiry into evidence that would obviously be relevant and useful because for larger policy reasons it�s best not to allow that sort of thing. And that�s the justification for this rule of evidence. On those grounds, I think this rule is a good idea. But it�s not an unqualified endorsement.

Oh, and even Thomas Jefferson accepted (at least arguendo) the rule against atheists testifying. (�If it be said, [an atheist�s] testimony in a court of justice cannot be relied on, reject it then, and be the stigma on him,� he wrote.)

Reagan dimes: Good for Mrs. Reagan. I know Mr. Reagan would have been mortified at the idea. Of course, I ain�t no big FDR fan, either. My grandpa used to refuse to carry dimes in his pocket �cause they had Roosevelt�s face on �em.

Grinch in Indiana: More on the scandalous Christmas tree at Indiana U. Law School....

Freedom! Horrible, horrible freedom!: (Little Simpsons quote there.) Yes, that�s right. Saddam Hussein may have stuffed people through shredding machines, but he wasn�t nearly so cruel as�free market competition! Oh, the horror! You know, if America had any kind of heart, we would just put all of Iraq on welfare and send them to American public schools.

Libertarian Bookworm: Oh, another classic: Areopagitica by John Milton.

Milton is my favorite Christian libertarian. As one of the greatest poets in the English language, his writing has an energy, his vocabulary a uniqueness, his sentences a rhythm, that make him a delight to read. Some parts of his works are dull, full of classical allusions and confusing references to history that nobody remembers anymore. Yet, four centuries later, works like Areopagitica still shine.

John Milton lived during the English Civil War, and supported the Roundheads, but not because he was a Puritan�he wasn�t, at least, not as we use the term, but he was an admirer of classical, Cato-the-younger-style republicanism. He worked as Oliver Cromwell�s Latin Secretary, a job that entailed supervising correspondence with foreign dignitaries, but really meant writing defenses of the Revolution against continental writers who claimed the revolution was illegitimate. Of course, by this time, Milton had gone blind from reading too much by candlelight, and he had taken to dictating his works.

In one of these books, the Second Defence of The English People, Milton addresses Cromwell, and you get a sense of his discomfort with the �social conservatives� who were taking over the Revolutionary cause. He defends separation of church and state, attacks vice laws, defends freedom of speech. Cromwell�s fame will live long, writes Milton,

[I]f you leave the church to its own government, and relieve yourself and the other public functionaries from a charge so onerous, and so incompatible with your functions; and will no longer suffer two powers, so different as the civil and the ecclesiastical, to commit fornication together, and by their mutual and delusive aids in appearance to strengthen, but in reality to weaken and finally to subvert, each other�. Then since there are often in a republic men who have the same itch for making a multiplicity of laws�and since laws are usually worse in proportion as they are more numerous, if you shall not enact so many new laws as you abolish old�and�retain only those which are necessary�which, while they prevent the frauds of the wicked, do not prohibit the innocent freedoms of the good, which punish crimes, without interdicting those things which are lawful, only on account of the abuses to which they may occasionally be exposed. For the intention of laws is to check the commission of vice, but liberty is the best school of virtue, and affords the strongest encouragements to the practice�. If you permit the free discussion of truth without any hazard to the author, or any subjection to the caprice of an individual, which is the best way to make truth flourish and knowledge abound�. [L]east of all listen to those, who think that they can never be free, till the liberties of others depend on their caprice, and who attempt nothing with so much zeal and vehemence, as to fetter, not only the bodies but the minds of men�.

When Milton was in his forties, he got married for the first time, to a girl in her teens. Of course, she wasn�t keen on Milton�s ascetic self-discipline, and she wasn�t nearly so educated as he. So she ran away, back to her family, and Milton characteristically responded by writing a book to argue that divorce should be legal.

Of course, that was pretty scandalous stuff in seventeenth century England, and soon enough a man rose in Parliament to declare that Milton�s Doctrine And Discipline of Divorce should be banned, because it had been published without the required government license (called an �imprimatur�). In response, Milton wrote Areopagitica (the title is Greek for �things to be said before the governing council�), the most eloquent defense of free press ever written. It�s also short, and you can skip passages where he delves into obscure classical history.

Milton�s argument is the same that John Stuart Mill and Friedrich Hayek would later adopt: freedom of printing is necessary because only by free discussion can we discover the truth. We must �permit�others to unite those dissever�d peeces which are yet wanting to the body of Truth. To be still searching what we know not, by what we know, still closing up truth to truth as we find it (for all her body is homogeneal, and proportionall), this is the golden rule in Theology as well as in Arithmetick, and makes up the best harmony in a Church; not the forc�t and outward union of cold, and neutrall, and inwardly divided minds.�

Like Jefferson, Milton argues that truth does not need government support�people will, eventually, discover and yield to what is right. In Jefferson�s words, �error alone needs the support of government.� A century earlier, Milton had written �though all the windes of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licencing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter[?]�

Milton�s defense of free press isn�t only a consequentialist defense, though. The right to freely express our views is a natural right of all human beings. In one of my favorite passages, Milton says

Books are not absolutely dead things, but doe contain a potencie of life in them to be as active as that soule was whose progeny they are; nay they do preserve as in a violl the purest efficacie and extraction of that living intellect that bred them. I know they are as lively, and as vigorously productive, as those fabulous Dragons teeth; and being sown up and down, may chance to spring up armed men. And yet on the other hand, unlesse warinesse be us'd, as good almost kill a Man as kill a good Book; who kills a Man kills a reasonable creature, Gods Image; but hee who destroyes a good Booke, kills reason it selfe, kills the Image of God, as it were in the eye. Many a man lives a burden to the Earth; but a good Booke is the pretious life-blood of a master spirit, imbalm�d and treasur'd up on purpose to a life beyond life. �Tis true, no age can restore a life, whereof perhaps there is no great losse; and revolutions of ages do not oft recover the losse of a rejected truth, for the want of which whole Nations fare the worse. We should be wary therefore what persecution we raise against the living labours of publick men, how we spill that season�d life of man preserv�d and stor�d up in Books; since we see a kinde of homicide may be thus committed, sometimes a martyrdome, and if it extend to the whole impression, a kinde of massacre, whereof the execution ends not in the slaying of an elementall life, but strikes at that ethereall and fift essence, the breath of reason it selfe, slaies an immortality rather then a life.

Areopagitica also makes an important point that libertarians have often repeated: you cannot make people good by law. �They are not skilfull considerers of human things, who imagin to remove sin by removing the matter of sin�.� Even if you are somehow successful in forcing people to do what you think they ought, doing so removes the very goodness of their actions:

what wisdome can there be to choose, what continence to forbeare without the knowledge of evill? He that can apprehend and consider vice with all her baits and seeming pleasures�and yet prefer that which is truly better, he is the true wayfaring Christian. I cannot praise a fugitive and cloister�d vertue, unexercis�d & unbreath�d, that never sallies out and sees her adversary, but slinks out of the race, where that immortall garland is to be run for, not without dust and heat. Assuredly we bring not innocence into the world, we bring impurity much rather: that which purifies us is triall, and triall is by what is contrary. That vertue therefore which is but a youngling in the contemplation of evill, and knows not the utmost that vice promises to her followers, and rejects it, is but a blank vertue, not�pure�.

I find this book so beautiful, it�s hard not to quote the entire thing here! Check out Areopagitica.

Of course, nobody listened to Milton. Censorship, and the dictatorship of Cromwell, left Milton despondent about the chance of free government. When the English monarchy was restored, Milton, now old as well as blind, retired to his home to compose and dictate the epic Paradise Lost. In the closing passages of Paradise Lost, Milton expresses his despair about the chance of creating a free society. The Archangel Michael tells Adam that

Since thy original lapse, true Libertie
Is lost, which alwayes with right Reason dwells
Twinn�d, and from her hath no dividual being:
Reason in man obscur�d, or not obeyd,
Immediately inordinate desires
And upstart Passions catch the Government
From Reason, and to servitude reduce
Man till then free. Therefore since hee permits
Within himself unworthie Powers to reign
Over free Reason, God in Judgement just
Subjects him from without to violent Lords;
Who oft as undeservedly enthrall
His outward freedom: Tyrannie must be,
Though to the Tyrant thereby no excuse.

One hundred and two years later, the American colonies declared their independence.

Can�t happen here: Man, corruption in the issuing of taxi licenses in Malaysia. Thank god we live in a nation that respects freedom of opportunity so much that this sort of thing never happens.

This business takes guts: Police in South Africa and Brazil have broken up a trans-Atlantic human organ ring�a �scheme to buy human organs from impoverished Brazilians for sale to desperate and ailing recipients in South African hospitals.�

My favorite architecture: I love Frank Lloyd Wright immensely, but my very favorite style of architecture is the Craftsman style of Greene and Greene. The Greene Brothers worked most prominently in Pasadena, (although they built all over Southern California) and their best known work is the Gamble House, a Pasadena landmark. I actually think the Blacker House is more beautiful; a masterpiece the interior of which was broken up a few years ago by a Texas investor because the constituent parts are worth more when sold separately than when kept as part of the same house. (Pasadena residents still refer to this as the �Texas chainsaw massacre.� But should it be illegal? I don�t think so. If you own it, you can destroy it, and if neighbors don�t like that, they should buy it themselves. Sure, subsidies would be fine, or at least better than what we have now.) Anyway, craftsman strikes for me the perfect balance between modern and traditional; between ornament and function. The huge sleeping porches flying out from the sides�the exposed beams and copper accents�the honest, warm wood and the stylish stained glass�absolutely perfect.

My Last Duchess by Robert Browning

That�s my last Duchess painted on the wall,
Looking as if she were alive. I call
That piece a wonder, now: Fr� Pandolf�s hands
Worked busily a day, and there she stands.
Will�t please you sit and look at her? I said
�Fr� Pandolf� by design, for never read
Strangers like you that pictured countenance,
The depth and passion of its earnest glance,
But to myself they turned (since none puts by
The curtain I have drawn for you, but I)
And seemed as they would ask me, if they durst,
How such a glance came there; so, not the first
Are you to turn and ask thus. Sir, �twas not
Her husband�s presence only, called that spot
Of joy into the Duchess� cheek: perhaps
Fr� Pandolf chanced to say, �Her mantle laps
Over my Lady�s wrist too much,� or �Paint
Must never hope to reproduce the faint
Half-flush that dies along her throat�; such stuff
Was courtesy, she thought, and cause enough
For calling up that spot of joy. She had
A heart�how shall I say?...too soon made glad,
Too easily impressed; she liked whate�er
She looked on, and her looks went everywhere.
Sir, �twas all one! My favour at her breast,
The dropping of the daylight in the West,
The bough of cherries some officious fool
Broke in the orchard for her, the white mule
She rode with round the terrace�all and each
Would draw from her alike the approving speech,
Or blush, at least. She thanked men,�good; but thanked
Somehow�I know not how�as if she ranked
My gift of a nine-hundred-years-old name
With anybody�s gift. Who�d stoop to blame
This sort of trifling? Even had you skill
In speech�(which I have not)�to make your will
Quite clear to such an one, and say, �Just this
Or that in you disgusts me; here you miss,
Or there exceed the mark��and if she let
Herself be lessoned so, nor plainly set
Her wits to yours, forsooth, and made excuse,
�E�en then would be some stooping; and I chuse
Never to stoop. Oh, sir, she smiled, no doubt,
Whene�er I passed her; but who passed without
Much the same smile? This grew; I gave commands;
Then all smiles stopped together. There she stands
As if alive. Will�t please you rise? We�ll meet
The company below, then. I repeat,
The Count your Master�s known munificence
Is ample warrant that no just pretence
Of mine for dowry will be disallowed;
Though his fair daughter�s self, as I avowed
At starting, is my object. Nay, we�ll go
Together down, Sir! Notice Neptune, though,
Taming a sea-horse, thought a rarity,
Which Claus of Innsbruck cast in bronze for me.

You�re�out?: Well this sure ain�t good!

How Alexander died: Courtesy of Living Code (with a cool Die Hard reference, too!)

How taxes work: I�ve always enjoyed this. Copy and paste it into an email and send it around to a few friends. (Found it on Alt Text.)

Navel-gazing: Since Prof. Bainbridge is pointing out his eclecticism, I think I will, too. You see, it�s the end of the year, which means time to write up my list of books to read for 2004. I write a list every year around this time, although I�m not very good at sticking to it. But here�s the part where you come in: the list is open to the public. Do you have a book you think I ought to read? Then let me know, and it goes on the list. I do not guarantee that I will read the book, but I often do read the books that people put on my list. In fact, I�m starting Screwtape Letters (which Prof. Hewitt recommended) after Christmas. (My copy�s down in San Berdoo, so I have to go get it first.)

Here, by the way, is a list (I think complete) of the books I read this year. I think it�s a bit eclectic, too.

Almayer�s Folly by Joseph Conrad
The Cato Supreme Court Review
The Character of Physical Law by Richard Feynman
Cicero by Anthony Everitt
Consciousness Explained by Daniel Dennett
The Constitution of Liberty by Friedrich Hayek
Crusaders in The Courts by Jack Goldberg
A Devil�s Chaplain by Richard Dawkins
Elizabeth And Her German Garden by Elizabeth von Arnim
Freedom Evolves by Daniel Dennett
The Horse Whisperer by Nicholas Evans
John Adams by David McCollough
John Marshall by Jean Edward Smith
Joseph Conrad by Roger Tenant
Justice And Its Surroundings by Anthony de Jasay
Kinds of Minds by Daniel Dennett
The Man Who Mistook His Wife For A Hat by Oliver Sacks
The Moon Is A Harsh Mistress by Robert Heinlein
Passport by Bruce Herschensohn
Peter Pan by J.M. Barrie
Pillar of Fire by Taylor Branch
Red Thunder by John Varley
So What by John Szwed
The Substance of Style by Virginia Postrel
The Supreme Court And American Constitutionalism by Ken Masugi and Bradford Wilson
The Thinking Revolutionary by Ralph Lerner
To Begin The World Anew by Bernard Bailyn
Thomas Jefferson: A Life by Willard Sterne Randall
Victory by Joseph Conrad

Not bad for a full-time attorney with a girlfriend and articles to write. Don�t wanna hear any whining from folks about not having any time to read. How about you, Scipio?

Bastard! He�s always one step ahead!: When I was in high school, I read about Napoleon, who simply declared himself emperor of France. I decided this was a great idea, so I declared myself emperor of the high school. The joke continued until finally the principal herself publicly acknowledged that I was the emperor.

Who knew that I�d been beaten to it by a century?

War on Wal-Mart: Continues....

Police power and eminent domain: A while back I said that we must take care to draw a conceptual line between the police power and eminent domain. Then today I ran across the following, by Massachusetts� great Chief Justice Lemuel Shaw:

...every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community.... Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it; which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.

Commonwealth v. Alger, 61 Mass. 53, 84-85 (1851) (emphasis added).

Proof of a new Tim�s Rule of Life: the common law is always smarter than you are. (Oh, and I know this does not address the Marston-Sandefur debate at all, since he views environmental regulation as falling under Shaw�s definition of police powers. I only point this out because I think it interesting how far back this distinction goes.)

Unusual candor: �It is no answer to say that the party from whom land is proposed to be taken will be compensated. Everyone knows that the fifth federal amendment, forbidding the taking of property without just compensation, is, in eminent domain proceedings, of practically little efficacy.� Wagar v. City of Lakewood, 1914 WL 1225, *12 (Ohio Com.Pl. 1914).

More on definitions: Now this is what I mean by capitalism: �[T]his statute...is clearly in violation of section 6, article 8, of the constitution, which provides: �The general assembly shall never authorize any county, city, town or township, by vote of its citizens or otherwise, to become a stockholder in any joint-stock company, corporation or association whatever, or to raise money for, or loan its credit to, or in aid of any such company, corporation or association.� In relation to this section, I cannot do better than adopt the language of C. J. SCOTT, in Walker v. Cincinnati, 21 Ohio St. 54. He said, �The mischief which this section interdicts is a business partnership between a municipality or subdivision of the state and individuals or private corporations or associations. It forbids the union of public and private capital or credit in any enterprise whatever. In no project originated by individuals, whether associated or otherwise, with a view to gain, are the municipal bodies named permitted to participate....� And I will add, that it makes no difference whether the scheme for the union of public and private money or credit originates with the party or parties representing the public or the private interests. In short, the thing prohibited is the combination in any form whatever of the public funds or credit of any county, city, two of township with the capital of any other person, whether corporated or unincorporated, for the purpose of promoting any enterprise whatever.� Wyscaver v. Atkinson, 37 Ohio St. 80, 96-97 (1881). Yay!

In my day...: Okay, does anyone else remember this? Down in Pasadena, there was a building behind the old Green Hotel which had the following painted on the wall: ��My people are the people of the dessert,� said T.E. Lawrence, picking up his fork.� It was there all through my childhood, until the October 1989 earthquake caused severe damage to the wall and it had to be repaired and repainted. Does anyone recall that? And if so, does anyone know what the story behind it was?

Posner�s cat: I mentioned to a colleague that Judge Posner claimed his cat Dinah had over fifty mice to her credit. �No wonder,� he said. �The cat feels it has to compete. Sees how much Posner�s published....�

Fame!: Thanks to Greg Goelzhauser for the link. For more on the Slaughter House Cases, read this.

By the way, he�s right. Chevron is awful. But then, any time the Court compromises the Constitution in order to accomodate the Regulatory Welfare State, the result is bound to be awful.

Public use bibliography: I added some newly found sources to my bibliography on eminent domain.

Victims of Communism: The Victims of Communism Memorial Foundation has a new website.

Eco-imperialism: Steven Milloy writes that eco-imperialism�which means first world nations forcing third world nations to abide by stringent environmental protection regulations��violates these people�s most basic human rights�and denies them economic opportunities, the chance for better lives, and the right to rid their countries of diseases that were vanquished long ago in the U.S. and Europe.� It�s a serious problem. As Jawaharlal Nehru said, �It is science alone that can solve the problem of hunger and poverty, of insanitation and illiteracy, of superstition and deadening customs and traditions, of vast resources running to waste, of a rich country inhabited by starving people. Who indeed can afford to ignore science today? At every turn we have to seek its aid. The future belongs to science and to those who make friends with science.� (Quoted in Richard Dawkins, Unweaving The Rainbow 30 (1998).) Denying technological advancement to other countries because of our personal sensibilities is a deadly form of arrogance.

The Blogbook: A blog centered around lawblogging. (Which I found through SW Virginia Law Blog) But�oh, how lawyerly!�they admit they can�t define law blog.

I�ve been asked before if Freespace is a law blog. My answer has always been no. Freespace is a personal weblog that just happens to be written by a slightly obsessive lawyer.

Trees in the Old Dominion: Yes, Virg�um, no, I won�t say it. But a Virginia fire marshal�s attempt to ban Christmas trees from apartment buildings has been beaten back by public outrage. (You have to admit, allowing people to have Christmas trees just makes no sense in the Administrative State.)

Liberty!: Somehow this reminded me of this.

Gerrymandering: The Colorado case has startled a good many people, it seems. I think the courts should simply declare that protecting the re-election chances of incumbents is not a legitimate state interest.

Xmas music: I know, I know, it�s Scrooge-y, but I admit I sympathize with this article. There�s only so much non-stop 24-hour-a-day Christmas music you can take, you know?

Why I love this town: Here�s the Grand Marshal of the Placerville Christmas parade.

Public choice: I mentioned below the tendency of government to become a mere tool in the hands of corporations�through its power to give out monopolies. Here�s yet another example.

Playboy�s 50th: Did you know that Bradbury�s Fahrenheit 451 was originally published in Playboy? Neither did I.

Update: Ah, turns out not quite.

From the Commonplace Book: �Was I left, like Sancho Panca, to choose my kingdom...it should be a kingdom of hearty, laughing subjects: And as their bilious and more saturnine passions, by creating disorders in the blood and humours, have as bad an influence, I see, upon the body politick as body natural�and nothing but a habit of virtue can fully govern those passions, and subject them to reason,�I should add to my prayer�that God would give my subjects grace to be as WISE as they were MERRY; and then I should be the happiest monarch, and they the happiest people under heaven.� Laurence Sterne, Tristram Shandy.

Corporations: Prof. Marston says �if I could only convince him to add corporate power (and democracy) to the core of his jurisprudential framework....� I assume he means that he wants me to address the badness of corporations. But I�ve done so repeatedly. I�ve called for a boycott of Costco for eminent domain abuse. I�ve attacked corporations for supporting communist regimes. And just recently I sided with Karl Marx of all people (sort of)! I�ve always maintained that the worst enemies of capitalism are the businessmen. �Course, I know that�s not the critique Marston would prefer....

Potty-parity: This seems entirely reasonable (not to mention chivalrous) to me. But is it constitutional?

Shaking my faith: Hm...maybe there is a god after all! (Rom 12:19).

No glow: Transgenic pet fish banned?

Slaughter House sighting: Oh my god. I agree with Prof. Marston twice in a week?

Waste of Time: Justice Bedsworth, whose column �A Criminal Waste of Space� is popular among California lawyers, is publishing a collection of the columns. More info here.

Rockwell TV?: Don�t tell the Doughface Libertarians about this�they�ll want to join!

Tort reform: Over at En Banc, the Curmudgeonly Clerk* was kind enough to point to my comments on California Business & Professions Code �17200, the �Unfair Competition Law.� I haven�t really made a thorough case for reform of the UCL because I don�t have the time and energy to be very thorough, but I will say this. I hear constantly of �17200 abuses.

I get calls from businesses who report that lawyers are going through downtown shopping areas with people in wheelchairs testing every front door for violations of the ADA and �17200. (More on these �shakedown� suits here and here) There�s a case right now up in wine country where a county official wanted to deny a food service permit to a winery�the other county officials disagreed, so they fired him�so he went down and filed his own �17200 suit against the winery. Or in another case, a woman called me�she�d sought a business permit and was told by county officials that she could continue in business pending her permit hearing. (Her business was renting her lawn to wedding parties.) Then they changed their minds, and are suing her for $25,000 under �17200. More �17200 abuses here and here and here, and here. And this problem isn�t limited to California: in another currently pending case, a trial court hearing a class action lawsuit with class members from across the nation�but suing in California�held that it could simply ignore the choice of law clauses of the contracts from 48 other states, because �17200 is more broadly written than any other �consumer protection� law, and therefore it violated public policy to require litigants from other states to litigate there even though the contracts they signed required them to do so. I�d love to hear any other �17200 horror stories�send �em my way!

Anyway, keep in mind that the question isn�t so much how many businesses are closing their doors due to bad regulatory regimes�a far more important question is how many businesses never open up in the first place. How much entrepreneurialism is stifled. How much creativity is never even born.

*--Freespace employees, armed with supersecret spy technology, have managed to snap this surreptitious photograph of the heretofore anonymous Clerk. My, but he looks curmudgeonly, don�t he? Shh. Don�t let him know we�re on to him.

Strike shirts: Okay, folks, buy a L.A. grocery strike T-shirt. Get �em while they�re hot! (Thanks to Jason.)

Marilyn: My very favorite photo of Marilyn Monroe is by Bert Stern. Unfortunately, I can�t find a good copy anywhere online. Here�s one from the same sitting, but in the one I�m thinking of, she�s asleep (or pretending to be). It�s very dramatic. (You can see it on this page in a thumbnail, on the far left, fifth from the last row).

Times Square vendors: New York�s law limiting the number of vendors who can sell in Times Square has elapsed. As a result, a bunch of vendors have shown up, creating�they say�a traffic hazard. But really, the quotes say it all:

�Dae Kim, 50, a Vietnam War veteran who hawks hats, gloves and scarves on W. 42nd St., said he has a right to earn a living. �I was shot. I deserve to make my own living, not rely on the government,� he said. �I don�t care what the politicians say.�

�But Hildie Chavez, 37, an account executive who has lived in the neighborhood all her life, said the vendors are creating a public danger.

��Get rid of them all,� she said. �When we have to get around, we have to walk in the street.... It takes the pleasure out of Times Square.��

Licensing: Once again, a city using licening laws to drive out a business simply because it�s unpopular.

Walk of Fame: A while back my friend Don asked why Ayn Rand doesn�t have a star on the Hollywood Walk of Fame. It�s certainly the sort of thing she would have loved. The answer is that you actually have to be alive. They only give out one star per year to a dead person.

Banks: CrimLaw has a post on the Fourth Amendment case from yesterday. I certainly agree.

Update: Looks like his permalinks don�t work. Scroll down a bit.

Marx�s relevance: Prof. Leiter has a post about why Marx is relevant today. (Saw it on Legal Theory.) Of course he�s right that Marx remains relevant and that the fall of the Soviet Union is neither here nor there on that question. Marx is very important to understanding the world today, if for no other reason than that a very large group of people continue to believe in doctrines that trace back to his writings.

But Prof. Leiter goes on to say not only that Marx is relevant, but that Marx was right in many things. Now, I actually agree that Marx was right in many things. But not in the things Prof. Leiter says. I suspect the difference might lie in our definitions of �capitalism.� I take capitalism to mean a political-economic system in which government interferes in the private contracts of individuals to the most minor extent possible. There are some tricky issues involved (for instance, does the common law prohibition on contracts in restraint of trade constitute �interference�?) so I won�t say an absolute separation of government and economics�but something very close to that.

Prof. Leiter seems to adopt a different definition. I can think of no other explanation for his assertions that �capitalism continues to conquer the globe; its effect is the gradual erasure of cultural and regional identities; growing economic inequality is the norm in the advanced capitalist societies; where capitalism triumphs, market norms gradually dominate all spheres of life, public and private; class position continues to be the defining determinant of political outlook; the dominant class dominates the political process which, in turn, does its bidding....�

I don�t believe that any of these are either true or fairly traceable to capitalism, at least, as I define it. This idea of the �gradual erasure of cultural and regional identities,� for instance. As Virginia Postrel notes in The Future And Its Enemies, the fact is that the broader the market, the greater the variety of cultures represented in that market, and monolithic products or corporations are generally forced (by the market) to join in the culture. No law, for instance, requires California companies to print their materials in both English and Spanish, and yet every day more of them do. Many neighborhoods have billboards advertising only in non-English languages. And in other ways, multinational corporations are required to comply with local cultures. McDonald�s is forced to alter its menus to accomodate local tastes�a few years ago, in Boston, I discovered that the McDonald�ses there serve lobster sandwiches! Culture is certainly changed, and mixed with other cultures, by the forces of the market, but it�s not true that regional identities are destroyed by the free market. (It�s another question whether, if this were true, that would be a bad thing. I suspect I would say it�s often a very good thing. The influx of Western medical technology, for instance, might indeed undermine the �regional identity� represented by local voodoos. Would that be bad?)

I don�t think it�s true that �capitalism continues to conquer the globe.� One out of every five human beings lives in a slave state today. And I don�t think it�s true that �growing economic inequality is the norm in advanced capitalist societies.� In fact, the hallmark of capitalist societies since capitalism was invented has been the growth of the middle class and decrease of economic differences. Economic differences are far more narrow in freer countries than in less free countries. And, of course, just in terms of average income, even the poorest are better off in countries with freer markets. Compare Hong Kong and India, for instance.

Finally, I don�t think it�s true that �the ruling ideas in any well-functioning society will be ideas that promote the interests of the ruling class in that society, i.e., the class that is economically dominant.� As Prof. Marston was saying the other day, most people, including especially the very rich, are enthusiastic defenders of the Regulatory Welfare State.

But that�s just the thing. Prof. Marston�s definition of capitalism might be different. Marx was writing at a time when it was considered perfectly fine for government to subsidize wealthy corporations like the Central Pacific Railroad and whatnot�things that I would definitely not call �capitalism.� Marx�s barbs are far more accurately aimed at what we today call the �mixed economy��when government becomes an instrument of corporate power.

In fact, note that Marx�s writing partner Friedrich Engels actually praised the repeal of the Corn Laws, just as modern defenders of the free market do, because these laws were an example of a government-business partnership that benefitted local farmers at the expense of the urban poor�just like the Bush Administration�s steel tariffs (good riddance!).

Or take the eminent domain context. As I�ve noted many times, corporations like Costco profit immensely by taking property away from the poor by exploiting the government�s eminent domain power. That�s certainly an example of the �dominant class dominat[ing] the political process which, in turn, does its bidding.� It�s awful, and it really does exploit the poor to benefit the rich. If that�s what Prof. Leiter means by capitalism, then he�s certainly right.

Why I left the Republican party: By Virginia Postrel.

Regulatory takings: Prof. Marston has some concluding remarks on regulatory takings. I�ve added it to my index.

Sarah�s comments: I don�t have comments, as some blogger once said, for the same reason that I don�t let other people come into my living room and graffiti on my living room walls. If anyone has anything substantive to say, they�ll email me or set up their own blog. Will Baude has more on the worthlessness of comments.

Xmas tree: Apparently the Christmas tree at Indiana University law school was �too controversial� and was removed.

New Deal and race: Jim Powell has an article on the New Deal�s effect on black Americans. Also check out Paul Moreno�s article from the Independent Review, and, of course, Prof. Bernstein�s book Only One Place of Redress.

When they�re right�: California Treasurer Phil Angelides sez: �[Schwarzenegger�s] massive deficit borrowing proposal will mortgage our children�s future...[a]nd our children will be saddled with this debt....� The Sacramento Bee agrees. They�re absolutely right. These bonds simply tax our children and grandchildren. But one is tempted to ask, where were Angelides and the Bee over the past decades, when bond after bond after bond was passed with the misleading ballot pamphlets proclaiming �this isn�t a tax increase!� All reminds me of a great Walter Williams line: �What do I care about future generations? What have they ever done for me?�

Searches: Say what you will about Justice O�Connor�s awful multi-factor balancing tests, I prefer them immeasurably to this �totality of the circumstances� crap. The rule will mean this�the cops will break down your door first and ask questions later. Oh, I know, we�re not supposed to presume such awful things. But face it: totality of the circumstances means, whatever the judge feels like that day. Nothing more.

With a multi-factor test, at least you know what circumstances you�re supposed to consider! Under this decision, the rule is this: if you might, maybe, destroy the evidence, they don�t have to wait. Souter admits it: �[W]hat matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink....� Well, where is the restraint in that? It�s nonexistent. Yet Justice Souter writes that �in the case with no reason to suspect an immediate risk of frustration or futility in waiting at all, the reasonable wait time may well be longer when police make a forced entry, since they ought to be more certain the occupant has had time to answer the door.� Just what case will that be?

Judicial review: Prof. Bainbridge should also check out Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887 (2003) (which I found on Legal Theory Blog some time ago), an unusually good defense�both historical and intellectual�of judicial review.

Best conservative blogs: No Left Turns points out that you can nominate your favorite conservative blogs. I know you want to nominate me, but I�m not eligible, since I�m not conservative. And why do I have the sneaking suspicion that Willi Flemingo is a pen name for a certain former law prof. of mine?

Comments: Don�t accept comments, Sarah. Please. They�re stupid.

Hating Britney: Fox News picks up on the hating-Britney discussion.

Marston and takings�a conclusion: In debates like these, the point isn�t to convince the other guy�which isn�t very likely�so much as to educate the audience. But I suspect that our audience is evaporating, if it hasn�t already, and we�re starting to repeat things we said already, so I think it�s time to bring this to a close. I have a few final points, and then Prof. Marston should have the last word. (Of course, I will answer questions if there are any.)

1) I have provided an analytical framework for understanding regulatory takings. Prof. Marston has not. He has not explained the distinction (if any) between the power of eminent domain and the police power; he has not explained the purpose of the just compensation requirement�indeed, it is unclear when or why, in his view, just compensation would ever be required. It seems that in his view, the clause has simply been repealed. In any case, Prof. Marston�s view �can can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.�

2) Prof. Marston addresses the issue from a �progressive� background from which property rights are only understood in a �social context.� What this means is that �society� (that is, the political power�in a democracy, the majority, in a dictatorship the dictator, and so on) may limit or take away your property rights when it decides that doing so is in the public�s interest. Once again, this renders the just compensation clause surplusage, which Prof. Marston does not deny. Also, it turns property rights into mere permissions by society. Again, Prof. Marston admits this. To his credit, he seems to disavow cases like the Mississippi eminent domain case�yet he defends exactly the same legal principles that almost allowed the state to take that neighborhood and give it to Nissan. (Doing so was, after all, about creating jobs, an economic good for all!)

3) Nor does Prof. Marston acknowledge that his view of property rights is precisely the same as that of the conservatives who pass anti-sodomy laws and so on. I said that his fundamental principle was that the state may take your private property whenever the majority decided that they had to in order to create their preferred regulatory regime, and that there was no principled distinction between this and the conservative belief that the state may regulate your private sexual behavior whenever the majority decided that they had to in order to create their preferred regulatory regime. I said that Prof. Marston embraces what Lincoln called the wolf�s principle: he defines freedom as the right of �some men to do as they please with other men, and the product of other men�s labor,� while I hold the sheep�s view, that liberty means �for each man to do as he pleases with himself, and the product of his labor.� Of course, one can always distinguish two cases if one refuses to think in principles, and Prof. Marston wrote that �In [slavery], there is a whole social structure devoted to subordination of one individual based on skin color and heritage. In the [Regulatory Welfare State], there is a genuine attempt to attain the good of all members of the community.� But of course if you ask a conservative why he regulates private sexual behavior, he would say it�s a genuine attempt to attain the good of all members of the community. And if you had asked John C. Calhoun about slavery he would said it was a genuine attempt to attain the good of all members of the community. In each case it is the �same old serpent�: it�s some people saying that their �genuine attempt to attain the good� allows them to force other people to do what they think is a good thing. Prof. Marston�s argument essentially is: taking away the property rights of property owners in Lake Tahoe is really really a good thing, so we shouldn�t have to pay for it.

4) It bears emphasizing that those on my side of this debate are not saying you cannot regulate to protect the environment. All we are saying is, you must pay for the things you take. If you can�t afford it, well�go out and get more money or something. We all have to set priorities.

5) Finally, Prof. Marston has said that my view of private property rights isn�t shared by most people. He says this while he makes light of the costs that the Tahoe moratorium imposed on �developers.� (Developers like, say, Bernadine Suitum. Stupid little old lady. Why doesn�t she just quit bitching about her costs. This is for the good of everyone, doesn�t she understand?!) He may be right. Of course, most people in America would probably have no objection to all sorts of laws that are unconstitutional. The point of the Constitution is to protect individuals against the majority. The just compensation clause �was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.� Armstrong v. United States, 364 U.S. 40, 49 (1960). It�s always easy to impose costs on property owners�developers, landlords, whatnot�and to ridicule the costs they have to bear. Nobody much sympathizes with this politically unpopular minority�I mean, who cares about landlords? Compare San Remo Hotel L.P. v. City And County of San Francisco, 27 Cal.4th 643, 697 (2002) (Brown, J., dissenting). But the purpose of our Constitution is to protect minorities. As Madison wrote, �In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.� The purpose of the bill of rights was to stop such exploitation of landowners or anyone else.

My thanks to Prof. Marston for a civil and interesting debate. I got into this primarily because I thought his first post, about Justice Brown�s dissent in San Remo, overlooked the very important principles involved, and that he perceived the issue as merely one of developers against The People. At the very least we have seen how deep these issues are�and how important principles are to the analysis.

Oh, and here�s an index of the discussion�I think this is in order: Marston, Sandefur, Marston, Sandefur, Sandefur, Sandefur, Marston, Marston, Sandefur, Marston, Sandefur, Sandefur, Marston, Sandefur, Marston.

Blogging: Is this the first textbook on how to blog?

Blogmap: I know what you say. You say, �Hey, Tim, where�s Freespace?� The answer is obvious�if you�re looking down on the Earth, you must be in Freespace. Hmm?

Flamingo v. USPS: Oral arguments were held today in Flamingo v. US Postal Service. I�ve blogged about this important (but so far ignored) case before. Here are the petitioner and reply briefs. The Washington Legal Foundation�s outstanding amicus brief is here. The Center for the Advancement of Capitalism also filed this amicus brief.

Bill Watterson: A pathetic earthling and I were recently discussing whatever happened to Bill Watterson, and why didn�t he sue to stop those irritating peeing-Calvin window stickers. The earthling then passed on the answer, and you can find it here.

Regulatory takings: Prof. Marston has a response to my earlier post on regulatory takings. A few things:

1) I referred in one of my first posts on the subject to �implicit, in-kind compensation.� I take this phrase to mean what Prof. Marston means by the �average reciprocity of advantage.� So he�s wrong that I don�t ascribe to that theory: I do. Justice Brown connected these dots in her San Remo dissent (see 27 Cal.4th at 701), and I refer the reader there.

2) I did not say that Prof. Marston was in favor of chattel slavery. What I said was that he ascribes to a political theory which sees the right to govern others as a fundamental right. He says that �Tahoe is about a clear lake, an environmental good for all.� But it isn�t a good for all�it�s a good for some that is paid for by taking property away from others. You note that the victims did not voluntarily pay that bill, but have litigated the case for decades, instead. He ridicules these people and the costs they have paid (calls them �[a] developer being pissed off...because he or she can�t build...�) but in the end he thinks that it�s really okay to make these folks pay the price of keeping Lake Tahoe clear. That is (to again quote Lincoln) �the same old serpent that says you work and I eat, you toil and I will enjoy the fruits of it.� Prof. Marston wants to prohibit people from building on land that they own, and then doesn�t want to pay them for it. That is the same old serpent, even if it is not as explicit as chattel slavery. Prof. Marston does not explain what is the difference�what makes it okay to take property from these developers and not pay them for it, for some allegedly �greater good,� but not okay to take property away from agricultural day laborers and not pay them for it, for a different allegedly �greater good.�

Well, he sort of does�first, he�s shocked, shocked that I would make such an extreme analogy. Okay. Anyway, second, he says that the clear lake is a really, really greater good, and that should be the end of the analysis, apparently. Somehow that is unfulfilling.

3) As to the question of how many years we have to go before we find a regulatory takings case, I think Prof. Claeys� answer to that in his paper is entirely satisfying, and I refer readers there. Many things are unconstitutional long, long before the courts get around to saying so. That�s just the way the law works.

Are the English free?: Prof. Bainbridge�s response to my comment on Marbury includes a question he thinks merely rhetorical: �Courts of Great Britain historically lacked power to throw out laws as unconstitutional, but who will seriously deny that the British people are free?� My answer: I deny it! Parliament is theoretically absolute, and may repeal everything from Magna Carta to the present day if it so wishes. Blackstone tells us (and I know of no English writer who disputes it) that Parliament�s power is �supreme, irresistible, absolute, uncontrolled authority,� which

can change and create afresh even the constitution of the kingdom and of parliaments themselves.... It can, in short, do every thing that is not naturally impossible; and, therefore, some have not scrupled to call it�s power, by a figure rather too bold, the omnipotence of parliament. True it is, that what the parliament doth, no authority upon earth can undo.... So long, therefore, as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.

I can imagine no clearer definition of tyranny. If that tyranny has been exercised benevolently, and if the people of England are, in practice, freer than people anywhere else in Europe, that is a testament to the character of the English people and their governors�but not to their form of government.

Judicial review is not about �turning every social and political issue into a question for unelected judges.� It is about forcing the legislature to abide by the Constitution. Abandon judicial review and you have what England has: legislatures without boundaries. Of course, that�s what we have now in practical reality�with the blessing of both liberals and conservatives!

The major political problem in America isn�t some evil cabal of unelected judges reaching beyond their purview. It�s legislatures ignoring and evading the limits of the Constitution, and then populists denouncing the Court when it dares to say no. When he was asked about judicial review, James Madison answered that the legislature�s overreaching was far more dangerous:

whatever may be the latitude of Jurisdiction assumed by the Judicial Power of the U. S. it is less formidable to the reserved sovereignty of the States than the latitude of power which it has assigned to the National Legislature, & that encroachments of the latter are more to be apprehended from impulses given to it by a majority of the States seduced by expected advantages, than from the love of Power in the Body itself, controuled as it now is by its responsibility to the Constituent Body. Such is the plastic faculty of Legislation, that notwithstanding the firm tenure which judges have on their offices, they can by various regulations be kept or reduced within the paths of duty, more especially with the aid of their amenability to the Legislative tribunal in the form of impeachment. It is not probable that the Supreme Court would long be indulged in a career of usurpation opposed to the decided opinions & policy of the Legislature.

In fact, legislatures themselves frequently turn social and political issues into questions for judges. As Lawrence Friedman writes, �[v]ague language in a statute is, in effect, a delegation by Congress to lower agencies, or to the executive and the courts; it passes the problem along to others.� A History of American Law 406 (1973). Congress routinely sets up regulatory schemes which leave the details to litigation, as with the Americans with Disabilities Act.

Yet (again quoting Madison) �[t]hose who have denied or doubted the supremacy of the judicial power of the U. S....seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition & execution of the law.� The right is as eager to assert the omnipotence of American legislatures as is the left; indeed, moreso in some cases. That is what lies behind serious criticisms of judicial review, and it is why I called Prof. Bainbridge's comment �dangerous.�

What you missed over the weekend: Another response to Prof. Marston about regulatory takings (with an update); the Libertarian Bookworm focused on Robert Heinlein; and I defend Marbury.

NAGPRA in England: Looks like America�s Native Americans Graves Preservation and Repatriation Act may be traveling to England, soon, along with its disastrous results. NAGPRA is a law that says that any Indian skeleton found on Federal land becomes property of the tribe of which the Indian was a member�or with which the Indian has a �cultural affiliation.� Wouldn�t be so much of a problem if there were some sort of time limit. But there isn�t, and as a result, Indian fundamentalists, who believe that the tribes were created out of the earth by the Great Spirit, are using the law to shut down archaeology by demanding the �repatriation� of skeletons of nearly 10,000 years old. Kennewick Man is only one of these, but there are several others. (Note: I wrote an amicus brief in the Kennewick Man litigation.)

Marriage laws: Stuart Buck has established �Andrew Sullivan Equal Marriage Rights Watch,� demanding that Andrew Sullivan either denounce laws prohibiting plural marriage and incestuous marriage�or concede the rationality of marriage laws which discriminate on the basis of sex.

Incestuous marriages seem very odd and even grotesque to me. I�ve never known anyone in such a marriage, but the thought disturbs me. Plural marriage isn�t quite as gross, but is still pretty weird, and I would think that jealousy would be a serious problem in such a relationship. Again, I�ve never known anyone in a plural marriage, so maybe I�m wrong about that; don�t really know. But I don�t think I�d ever want to be involved in either one.

But my rights are not violated by plural marriage. It neither picks my pocket, nor breaks my leg. I therefore have no right to stop others from engaging in plural marriage, and cannot therefore give the government that power. I therefore denounce laws against plural marriage.

Incest has two added problems: it�s more likely to involve less-than-genuine consent (because familial pressures, especially involving young people, are likely to vitiate the consent required to engage in marriage or sex) and I think there�s something to be said for the argument that their children have a right not to be conceived in a foreseeably dangerous manner.* But if we assume two mature adult relatives want to get married, and putting aside the question of their children�then, again, this would not violate my rights, and I therefore have no right to stop them. I therefore conditionally denounce laws against incestuous marriage.

I will, however, add this: yuck!

*--I�m not saying an unborn foetus has a right to life; I�m saying that it has a inchoate right to be conceived without negligence. Cf. Alexandria S. v. Pacific Fertility Medical Center, Inc., 55 Cal.App.4th 110, 122 (1997)

A Valediction: Forbidding Mourning
by John Donne

As virtuous men passe mildly away,
And whisper to their soules, to goe,
Whilst some of their sad friends doe say,
The breath goes now, and some say, no:

So let us melt, and make no noise,
No teare-floods, nor sigh-tempests move,
T�were prophanation of our joyes
To tell the layetie our love.

Moving of th�earth brings harmes and feares,
Men reckon what it did and meant,
But trepidation of the spheares,
Though greater farre, is innocent.

Dull sublunary lovers love
(Whose soule is sense) cannot admit
Absence, because it doth remove
Those things which elemented it.

But we by a love, so much refin�d.
That our selves know not what it is,
Inter-assured of the mind,
Care lesse, eyes, lips, and hands to misse.

Our two soules therefore, which are one,
Though I must goe, endure not yet
A breach, but an expansion,
Like gold to ayery thinnesse beate.

If they be two, they are two so
As stiffe twin compasses are two,
Thy soule the fixt foot, makes no show
To move, but doth, if the�other doe.

And though it in the center sit,
Yet when the other far doth rome,
It leanes, and hearkens after it,
And growes erect, as that comes home.

Such wilt thou be to mee, who must
Like th�other foot, obliquely runne;
Thy firmnes drawes my circle just,
And makes me end, where I begunne.

Coke: A new biography of my hero, Sir Edward Coke! And LibertyPress is still promising us two volumes of his writings...someday.

Got our number!: Hmm.

Judicial Review: I agree with Will Baude�s statement (and Prof. Marston�s) that conservatives must absolutely stop this dangerous rhetoric about courts taking things away from the always-flawless Will of The People. As Roger Pilon has explained, the problem is not one of judicial activism or judicial restraint, but one of fidelity to the constitution.

But Prof. Bainbridge�s critique of judicial review is equally dangerous, and must be qualified. In particular, Prof. Bainbridge seems to make a common modern error: confusing Marbury with �judicial supremacy.� Marbury does not stand for judicial supremacy, and it is unlikely that Chief Justice Marshall thought it would. Marbury stands for the view that the Supreme Court has the power to declare laws unconstitutional. Not even Thomas Jefferson disagreed with that�and certainly Madison did not. What Jefferson objected to was what he (correctly) feared that would lead to: the notion that only the Supreme Court may declare laws unconstitutional: that the courts are the final and sole exegetes of the Constitution. See further David N. Mayer, The Constitutional Thought of Thomas Jefferson ch. 9 (1994); Jean Edward Smith, John Marshall: Definer of A Nation 625 n. 60 (1996).

Fame!: Thanks to Prof. Rappaport for the link. By the way, I have an index for all entries of the Libertarian Bookworm here.

Thanks: In my post giving thanks, I made an oversight: the firemen who stopped last month�s awful fires in southern California. While I was down there this weekend, I drove up to look at how close the fire had come to my parents� home�a matter of a few blocks�and then went up to the Cal. State San Bernardino area. I hadn�t really thought about seeing destroyed homes, but there were many�whole neighborhoods reduced to chimneys and piles of unidentifiable rubble. Then I saw a sign that said �Lookey-Lous, go home and leave us alone!��so I left.

And there were vast areas of landscape burned all over and covered with darkness like a shadow�but it was ash�where the only thing still standing were people�s homes. There were many they couldn�t save, but there are so many people whose homes and livelihoods are still standing only because of those brave, hardworking men and women who put their lives at risk to protect us all. I and thousands of others are immeasurably and humbly grateful.

Regulatory takings and first principles: Prof. Marson cites William Novak, The People�s Welfare for the proposition that Wynehamer v. People, 12 How. Pr. (13 N.Y.) 378 (1856), was an innovation�a �departure from previous understandings of the social context of property rights.� In other words, before Wynehamer (or at least, before the 1850s) Prof. Marston�s views of property rights�by which �society� conditions the use or value of property, or even takes it away entirely without compensation, as �it� sees fit�prevailed. But Wynehamer declared the inviolability of property rights and required compensation when legislative intervention took the value of a piece of property.

This isn�t quite right, but it�s also not true that the law was always clearly on my side before Wynehamer, either. The fact is, the notion of a regulatory state such as we have today was simply nonexistent in the periods before that. Instead, nuisance law prevailed in adjudicating the rights of parties. I�ve mentioned the difference between nuisance law and the Regulatory Welfare State before�the former is predicated on the sic utere principle, while the Regulatory Welfare State affirmatively provides various public goods (e.g., a �clean environment�) and frequently does so by legally imposing the cost of providing such goods on particular people. (It is this last half that gives rise to the dispute over regulatory takings or equality in general.)

Cases that developed the theory enunciated in Wynehamer appear in retrospect to be innovations because they were responses to something that was an innovation: the Regulatory Welfare State. For instance, Lochner would not have arisen a century earlier, in 1805, precisely because it wouldn�t have occurred to people that the legislature might tell me how many hours I could work. (We can, of course, discern what the 1805 generation would have thought of things like the maximum-hours legislation in Lochner, by reviewing the prevailing concepts of liberty and the legitimate powers of the state. But that�s a different issue).

Now, Wynehamer is a fascinating case, but it has one drawback that makes discussion a bit more complicated: it involved temperance legislation. This makes it a hard case because courts were divided on the issue of whether the sale of liquor was a lawful business. This begs the question in at least three ways as I can see it, so I will try to put that part aside. (One obvious way is that we have come nowadays to equate �legal� with �lawful,� an equation which would not have been embraced by the Wynehamer court or earlier courts. For more on the distinction, see Friedrich Hayek, The Constitution of Liberty 234-244 (1960)). But it�s important to note that by the theory of regulatory takings that I have advanced, the proper outcome of Wynehamer is not as immediately clear as, say, the proper outcome of Penn Central.

But I think Wynehamer actually does serve as a great illustration of a fundamental division in American political philosophy which also can be found at the center of the division between Prof. Marston and myself. There was a profound debate going on in the 1850s, largely in the courts; indeed, I think it�s one of the two most important debates in all of American history: namely, what was the extent of �sovereignty� in America. (The other was, where is that sovereignty located.) I discussed this in a previous post where I contrasted the California case of Billings v. Hall, 7 Cal. 1 (1857) with the Pennsylvania case of Sharpless v. Mayor of Philadelphia 21 Pa. 147 (1853). In brief, the debate goes like this: Blackstone tells us that Parliament�s sovereignty is absolute and unlimited. It can do all things that are not naturally impossible. Before July 4, 1776, sovereignty in America rested in Parliament, but upon declaring independence, it went somewhere�either to the states or the national government; that�s the �other� debate I mentioned�and perhaps something happened to it. The Declaration speaks of nature�s laws. Do those laws limit the reach of sovereignty?

We find that debate at the center of, say, the conflict between Justice Chase and Justice Iredell in Calder v. Bull, or in the famous appendix to St. George Tucker�s edition of Blackstone, or in the first edition of Cooley�s Constitutional limitations, which was published in 1868. Some, like Chase, or Tucker, or James Madison, or Stephen Field, (or me) said that in America, sovereignty was limited by the natural rights of individuals�so that government could not have any power to take property from one person and give it to another. The other side, represented by the Sharpless court, or Justice Iredell, or California Supreme Court Justice David S. Terry, believed the opposite: sovereignty was unlimited, and the states could do anything their constitutions did not specifically prohibit. According to the latter view, then, the people could erase property rights by simply declaring them no longer to be property rights; property was created by the sovereign, which was the people, and they had unlimited power. According to the former view, government could have no power to do things such as taking property from some people and giving it to others (which is, of course, the entire function of the Regulatory Welfare State).

It�s in the context of that debate that Wynehamer arises. The legislature passed a temperance law that destroyed the value of liquor existing in the state. Liquor had always been recognized as property, the court held, id. at 384. (Strangely, the court advanced a positivist view of the origin of property rights that I would think undermines this point, but I don�t think that�s important now. See id. at 385.) The rest of the decision flowed fairly easily:

If the legislature has no power to confiscate and destroy property in general, it has no such power over any particular species.... In establishing such regulations merely, the legislature may proceed upon such views of policy, of economy or morals as may be addressed to its discretion...but...[may not] confiscate and destroy property lawfully acquired.... Property, if protected by the constitution from such legislation as that we are now considering, is protected because it is property innocently acquired under existing laws, and not upon any theory which even so much as opens the question of its utility. If intoxicating liquors are property, the constitution does not permit a legislative estimate to be made of its usefulness, with a view to its destruction. In a word, that which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be pronounced worthless or pernicious, and so destroyed or deprived of its essential attributes.

Id. at 385-86. This can�t be literally true, since the government can certainly take away a murderer�s gun without paying him for it. Perhaps the use of the term �lawful,� (which I mentioned is not the same as �legal�) provides the court with an escape from that point, but you see the problem.

Still, the Wynehamer court got into the more fundamental debate I�ve been talking about, and was a bit equivocal:

It has been urged upon us, that the power of the legislature is restricted, not only by the express provisions of the written constitution, but by limitations implied from the nature and form of our government; that, aside from all special restrictions, the right to enact such laws is not among the delegated powers of the legislature, and that the act in question is void, as against the fundamental principles of liberty, and against common reason and natural rights.... In Calder...Judge Chase said: �I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control, although its authority should not be restrained by the constitution or fundamental law of the state...� But where the constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of [legislative] power. Chief Justice Marshall...felt the difficulty; but the danger was less apparent then than it is now, when theories, alleged to be founded in natural reason or inalienable rights, but subversive of the just and necessary powers of government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our institutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied as I am that no rule can be laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of government. Nor is it necessary to push our inquiries in the direction indicated.

Id. at 390-92.

This debate has never really been resolved, and Wynehamer�s discussion of it is only dicta. The debate involves two essential elements of American political culture: democracy versus liberty. Cases like Wynehamer, Sharpless, or Billings raised this fundamental debate between those who thought that the right to be free from regulation was primary, and those who thought that the right to rule was primary. On one hand, the same hand as Sharpless or, it seems, Wynehamer, are those who believe that they have a fundamental right to tell other people how to run their lives. This group speaks of the �right� to �self-government,� as fundamental: by that, of course, they mean the �right� of the collective to set up a regulatory regime that they consider proper.

The Billings view, on the other hand, holds liberty to be primary. I have the right to act until someone provides convincing reasons that he has a right to stop me. Marston rejects this view as �in a cultural sense, not the accepted or consensus meaning in U.S. constitutional law, in high-level theoretical discourse on law, or in ordinary conversation.� Yet it is, at the very least, one half of the American political-philosophical tradition. And I shall add, it was the half embraced by the framers of the Declaration of Independence and the Constitution.

Abraham Lincoln described these two camps in one of my favorite analogies:

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. The shepherd drives the wolf from the sheep�s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty�. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty�.

When I say that Prof. Marston�s arguments for regulating property are the same as the conservatives� arguments for regulating private adult consensual sexual activity, this is why. Marston doesn�t think these are the same thing, but they are: the issue is whether you have a primary right to act, to own and to use property�and thus to a regime based on the sic utere principle�or whether you are primarily a thing to be governed. When the Court says that the state must pay just compensation for taking property from people, Prof. Marston, like the wolf, calls the court a destroyer of liberty. Plainly we are not agreed on a definition of the word liberty.

Update: Prof. Marston writes that �If in 1800...local authorities had regulated property uses in order to safeguard [the environment], there would have been no constitutional issue.� I can only refer him and other readers to Eric R. Claeys, Takings, Regulations, And Natural Property Rights, 88 Cornell L. Rev. 1549 (2003), which contains an outstanding and thorough refutation of this common misconception. The article is about a hundred pages long, so it�s serious reading, but it is worthwhile to see how �modern takings law and scholarship profoundly misunderstand nineteenth-century state regulatory takings law,� id. at 1553, and that �early Americans [were not] as oblivious about �regulatory takings� as Justices Stevens and Scalia assume they were[.]�� Id.

Libertarian bookworm: This week, the featured book is a classic science fiction novel, The Moon Is A Harsh Mistress by Robert Heinlein. Science fiction has always been popular among libertarians�one of several things we have in common with socialists. For one thing, we tend to be forward-looking, optimistic that our ingenuity can devise new solutions for our problems. Also, we are not afraid of abandoning customs that others think are essential to keep society healthy. Things like plural marriage, as described in The Moon Is A Harsh Mistress, don�t make us ponder The Decline of The West, they way it would to conservatives. Science fiction also can set a good background for allegory or other forms of social commentary. Finally, libertarians tend to be unusually intellectual people��nerds,� in the common parlance�and science fiction appeals to them.

Heinlein is widely regarded as among the greatest of science fiction authors, but I had never really been an admirer until I read Moon Is A Harsh Mistress. His most famous novel, Stranger In A Strange Land, I found dull, plotless, and full of mushy preaching. I tried reading Have Spacesuit, Will Travel, one of his novels for kids, and found it even worse. But Mistress is clever, well-written, and interesting. It�s told in first-person by Mannie, a 21st century resident of the Moon, and his polyglot English/Russian/American dialect is convincing without being too much. The plot is a description of the war of rebellion against the Moon in which Mannie plays a central part. Considering that the book was written five years before we even landed on the moon, it�s very impressive.

The reason libertarians love it is that the revolution is a revolution in favor of free markets, and against the protectionist Lunar Authority that runs life on the Moon. Heinlein avoids the pitfall of becoming too preachy, but when his characters do discuss their principles, they make the argument for liberty. Describing one member of the provisional government who keeps wanting to ban things, Mannie writes �Thing that got me was not her list of things she hated, since she was obviously crazy as a Cyborg, but fact that always somebody agreed with her prohibitions. Must be a yearning deep in human heart to stop other people from doing as they please. Rules laws�always for other fellow. A murky part of us, something we had before we came down out of trees, and failed to shuck when we stood up. Because not one of those people said: �Please pass this so that I won�t be able to do something I know I should stop.� Nyet, tovarishchee, was always something they hated to see neighbors doing. Stop them �for their own good��not because speaker claimed to be harmed by it.�

Heinlein depicts the moon as an anarchy, actually, and this is one problem I have with the book. Many libertarians are anarchists, or a variety of anarchist called �anarcho-capitalist.� I am not, and one of the reasons why surfaces when Heinlein describes the justice mechanism on the Moon. When people have a dispute, they hire Mannie to judge, and a group of people in the hallway to be the jury. The penalty is potentially death, although Mannie lets the accused go. Later he explains to the defendant,

�Stu,� I said, �let�s take that piece at a time. Are no �local laws� so you couldn�t be �put to death� under them. Your offence was not �trivial,� I simply made allowance for ignorance. And wasn�t done casually, or boys would have dragged you to nearest lock to zero pressure, shoved you in, and cycled. Instead, were most formal�good boys!�and paid own cash to give you a trial�. �We don�t have laws,� I said. �Never been allowed to. Have customs, but aren�t written and aren�t enforced�or could say they are self-enforcing because are simply way things have to be, conditions being what they are. Could say our customs are natural laws because are way people have to behave to stay alive. When you made a pass at Tish, you were violating a natural law�and almost caused you to breathe vacuum.�

This bothers me because it seems to vindicate one of the criticisms of anarchism: that it eventually turns into a society of warlords�as Madison put it, �In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.� Heinlein frankly admits that life in his Luna can be lived at the mercy of the mob, who alone decide whether to give you a trial or not:

��All our customs work that way�. If you eliminate a man other than self-defense, you pay his debts and support his kids, or people won�t speak to you, buy from you, sell to you.�

�Mannie, you�re telling me that I can murder a man here and settle the matter merely with money?�

�Oh, not at all! But eliminating isn�t against some law; are no laws�. But we figure this way: If a man is killed, either he had it coming and everybody knows it�usual case�or his friends will take care of it by eliminating man who did it. Either way, no problem. Nor many eliminations�.�

��His friends wil take care of it.� Mannie�I have no friends here.�

�Was reason I agreed to judge�.��

Despite my own objections to some of the political views Heinlein espouses, Mistress is an exciting and interesting iteration of libertarian theory, written with a careful attention to the experiences of revolutions in the past. Heinlein really understands how his future history works, and how revolutions work. You can get The Moon Is A Harsh Mistress here.