::Freespace::

Well put: William Letwin, one of my favorite legal scholars:

The Slaughterhouse cases are one of a series distinguished by the dissenting opinions of Justice Field. Though powerful and elegant arguments in favor of laissez-faire, they could more accurately be called constitutional objections to excessive regulation of economic activity, for to portray Field as a doctrinaire opponent of all regulation is radically to distort the truth. Indeed, one of the foundations of his reasoning in this cases was the broad scope that he attributed to the police power. “That power undoubtedly extends to all regulations affecting the health, good order, morals, peace and safety of society and is exercised on a great variety of subjects, and in almost numberless ways.” But the power could be misused, and it had been, he maintained, because the statute in question only pretended to be, as its title declared, a health measure. Had it truly been that, Field said, it could certainly have excluded slaughtering from the city, but it could not and would not have done so “for the benefit of a single corporation.” If health were protected by having one slaughterhouse outside the city, then it would hae been equally well protected by allowing many, and as, in fact, one had been given the exclusive privilege, “the pretense of sanitary regulations…is a shallow one.” This motif, of impermissible intent masquerading behind a proper avowed power, has of course become very familiar in desegregation cases during the past twenty years.

William T. Letwin, Economic Due Process And The Rule of Law, in Robert L. Cunningham, ed., Liberty And The Rule of Law 32 (1979).

Gone fishin’: I’m going out of town for the weekend to relax. I leave you in the capable hands of Dr. Dunn, to preach all the creationism he wants! (Of course I tease him. Dunn is extremely intelligent, a fine writer, and a good man...for me to poop on!)

Lent: Unlike any atheist I know, I actually observe Lent. I do it to see if I’ve got the self-discipline. Last year I gave up meat—not hard to do in Northern California, where all the restaurants have special Hippie Menus. This year I’ve given up French fries. If you knew me, you’d know how huge a sacrifice this is for me.

The Passion: Dr. Dunn isn’t the only one who found the film too moving to be reviewed. On the other hand, the Curmudgeonly Clerk says he wasn’t moved. And this review at Reason says what I pretty much expected.

The mote in Johnson’s eyes: I don’t think I run any risk of apoplexy; an idea so well substantiated as evolution is hardly threatened by the scribbling of ignorants. As far as memetics is concerned, I actually agree that it is not a revolutionary notion so far as it goes in describing the propagation of ideas; since a meme will tend to succeed in a population if that meme accurately describes reality, memetics doesn’t tell us anything more about ideas than to say that a true idea tends to last. If that were all memetics did, it would only be an interesting way of thinking about phenomena that have already been explained elsewhere. Where memetics might be more interesting is in explaining the mechanism of consciousness itself, or the origin of it. Dennett’s image of consciousness as a (so to speak) corporate entity, whereby several different mental processes operate at the same time, and give rise to consciousness through their group operations, might be explained by the existence of different memes all operating simultaneously. Here, memetics might be very useful.

(Susan Blackmore’s attempt to explain consciousness in this way in her book The Meme Machine, however, is really disappointing. As I have mentioned before, she ends up arguing that Dennett’s theory requires us to abandon the idea of the self. Since there is no single “I” sitting in a little room in the brain making choices, argues Blackmore, we ought to give up the idea of self, and seek a new Nirvana by relishing the flow of memes: “the quality of consciousness then changes,” she writes, “to become open, and spacious, and free of self.” But this does not follow. Eradicating the self is nothing more liberating than suicide, whether proposed by a Zen master or a university professor. Dennett quotes Robert van Gulick: “The personal—level experience of understanding is...not an illusion. I, the personal subject of experience, do understand. I can make all the necessary connections within experience, calling up representations to immediately connect one with another. The fact that my ability is the result of my being composed of an organized system of subpersonal components which produce my orderly flow of thoughts does not impugn my ability. What is illusory or mistaken is only the view that I am some distinct substantial self who produces these connections in virtue of a totally non—behavioral form of understanding.” Just because the self is a product of memes does not mean it is fake.)

As far as “slam-dunking Dawkins” goes, I’ve not read Stove, but the passage we are quoted does not make any coherent point against Dawkins. It sounds—like Mikva’s attack on public choice theory—like someone upset at the image a theory creates in his mind, and just getting so upset he has to scream! The Selfish Gene does not propose that we are helplessly in the grip of our genes, and Dawkins has never argued this in any of his writings. If that’s Stove’s contention, then he—and Dr. Dunn—simply have no idea what they’re talking about.

And as for the eye, I wish that if Dr. Dunn wanted to take on evolution, he would have chosen an example that had not already been thoroughly and repeatedly refuted. (And if he’s going to keep getting his evolutionary science from lawyers like Bork or Johnson, why not get it from a lawyer like me, who actually knows something about evolution?) I’m going out of town this weekend and I don’t have time to get into this at length, so I will simply refer the reader to chapter 5 of Richard Dawkins’ Climbing Mount Improbable, an entire chapter that describes the evolution of the eye. (See also The Blind Watchmaker, chap. 4). He explains that “eyes evolve easily and fast, at the drop of a hat.” Also, check out the other sources I linked to earlier. (And here is more.) Where Johnson is wrong—well, one of the many ways—is his contention that a fraction of an eye is useless because it would give a creature only a fraction of normal vision. Contrary to his contention, an eye can be extremely simple—some rudimentary “eyes” are nothing more than light-sensitive skin—and these would convey an evolutionary advantage. They would indicate the approach of predators or mates. Also it is not true that an eye is useless without a complex brain attached to it. An eye is useful for a creature that has a reflexive muscular response connected to a light-sensitive cell: indeed, plants have light-sensitive leaves and they bend toward the sun, which conveys an evolutionary advantage to them even though they lack brains. Not unlike Johnson.

I’ll continue this next week, if I’m still interested. In the meantime, perhaps Ed Brayton will chime in?

The Passion of Christ. Saw the movie in Denver last night. Heard sobbing all around throughout—and when the credits rolled, no one stood up. Walking out of the theatre, no one talked. Including me. It is a movie better seen than reviewed.

An Eye for an Eye. Sandefur makes a fine, if belittling point about the "argument from wow." But Dawkins' 'five-percent of an eye' contention still leaves me a tad nonplussed. Here is Phillip E. Johnson's take, from Darwin on Trial: "The fallacy in that argument is that '5 percent of an eye' is not the same thing as '5 percent of normal vision.' For an animal to have any useful vision at all, many complex parts must be working together. Even a complete eye is useless unless it belongs to a creature with the mental and neural capacity to make use of the information by doing something that furthers survival or reproduction. What we have to imagine is a chance mutation that provides this complex capacity all at once, at a level of utility sufficient to give the creature an advantage in producing offspring."

Slam-Dunking Dawkins. David Stove's dismemberment of Dawkins is a hilarious read—and generally hits the mark. Here is a representative paragraph from Genetic Calvinism: "For reasons like the obvious ones which I have now given, sensible people take no notice, when yet another crank or charlatan publishes yet another book which says that human beings are the helpless puppets of something or other: God, or God and demons, or History, or Race, or the Unconscious, or Aliens from Outer Space, or whatever. The Selfish Gene is simply another member of this slum breed of books, and ought to have been recognized as such from the start."

Memes Schmemes. At the risk of incurring some form of Sandefurian apoplexy, I'm going on record with an admission: I'm not much interested in 'memes.' I've tried to work up some meme-fever over the years, I've skimmed Dawkins and Dennett and all that, but keep finding myself underwhelmed. The concept strikes me as stale and unhelpful—and maybe a trifle paranoid, with all the attendant chatter on parasitology. Though I reserve the right to become memophilic in the future, at present, I'm not optimistic about my prospects.

David Stove, in his essay Genetic Calvinism, or Demons and Dawkins, hits a fairly convincing stride: "Now, Dawkins says, organic evolution is driven by the struggle between one gene and its rival genes for a place on the chromosome, and with that, the chance to self-replicate; and just so, cultural evolution, he says, is driven by the struggle between one meme and its rival memes for a place in our brains. Take, for example, the meme for the belief that the sun is at the center of the local planetary system. A few brains in classical antiquity had contained this meme, but it then disappeared for nearly two thousand years. In the mid-sixteenth century, however, it popped up again in the brain of Copernicus, and a struggle began between this heliocentrism and the geocentrism meme. At that time, the latter was settled in almost all brains, but the heliocentrism meme won the struggle long ago. It has been so successful, in replicating itself from one brain to another, that by now there are hardly any brains left which contain the geocentrism meme."

What does 17200 mean to you?: The cost of doing business in California is thirty percent higher than in other states, and forty percent of companies responding to a study by the California Business Roundtable “said their companies have an explicit policy to move jobs elsewhere in the United States” Here is the study. There is absolutely no excuse for the fact that the Golden State is strangling businesses through overregulation and too much litigation.

And the answer from the left? “‘We cannot allow businesses to use these excuses,’ said Art Pulaski, secretary-treasurer of the California Labor Federation.” In other words, “You’ll think of something, Mr. Rearden!”

More on Davey: I wrote earlier that I thought Locke v. Davey was wrongly decided. Prof. Tom West of the Claremont Institute disagrees. I respect Prof. West’s views on this matter quite a lot—he’s on the minority side at Claremont, but he’s obviously thought a lot about the issues. He’s the only Claremont Fellow of whom I’m aware who (correctly) believes that Employment Division v. Smith was correctly decided. I still disagree with him, however, because I find Justice Scalia’s note about the “baseline” convincing—in the Regulatory Welfare State, religious discrimination really will take the form of refusing benefits that are granted to all others. Were we back in the day, I’d more readily adopt Prof. West’s line.

Dr. Masugi, on the other hand, disagrees with Dr. West on the grounds that “Washington State was one of many ‘Blaine Amendment’ states.” But as the Court’s opinion explained, the law in question was not a Blaine Amendment, and the Court reserved for another day the question of the Blaine Amendments’ constitutionality.

Update: Owen Courreges agrees that Davey was wrongly decided, but he writes but he says that the Court “stretched the meaning of free speech” to include the jacket that said “Fuck The Draft” in Cohen v. California. Surely he can’t mean that. I find it hard to imagine a clearer example of constitutionally protected expression.

More fame!: On behalf of the Pacific Legal Foundation and Liberty magazine, I will be attending Freedom Fest 2004 in Las Vegas this May. I look forward to seeing you all there.

Fame!: Thanks to Crescat Sententia for the link. The answer to Mr. Baude’s nagging doubt is that although it’s true that Congress specified that the USPS would be subject to the Taft-Hartley Act, there are several other laws to which the USPS has been held to be subject, which are not specified in the Postal Reorganization Act. For instance, it’s subject to the Lanham Act, even though Congress had not separately specified it. Federal Exp. Corp. v. U.S. Postal Service, 151 F.3d 536 (6th Cir. 1998). It’s also subject to RICO, the Federal Communications Act, and other laws not mentioned in the Reorganization Act. Most importantly, to require Congress to add to its waiver of sovereign immunity a list of which laws the formerly immune entity must now obey, would reverse the liberal construction of waivers of immunity that the Flamingo Industries opinion itself invokes. The better analysis is that, once sovereign immunity has been waived, the burden should be on the entity to prove it is still exempt from a law. FHA v. Burr, 309 U.S. 242, 245 (1940).

Thanks also to Misadventures of Sarah Hempel for the link. I asked her to provide evidence that defenders of abortion rights hate women. She reveals that she has none.

Update: I don’t intend to spend much more time on this, but Sarah Hempel says her proof that defenders of abortion rights hate women is as follows:

abortions are harmful to women
abortions kill babies

How can someone who fights for the right to hurt women and kill babies actually care about the women or the babies?

Of course, these premises lead to no conclusion, even if they were true. The evidence that abortion causes physical harm to women is questionable, and even if it does, there are plenty of things which are physically harmful to people which one can defend their right to do; and that defense cannot be rightly considered a hatred for the people who are harmed thereby. I believe people should have the right to use narcotics or alcohol or to get various decorative piercings. This does not prove that I wish them harm, but rather that I believe that if these people wish to cause themselves harm, they have the right to do so. As for abortion “killing babies,” Miss Hempel would need to prove that the foetus is a baby, which of course neither she nor any other anti-abortion writer of whom I’m aware, has done.

My point in all this was not to defend abortion rights. My point was that alleging that defenders of abortion rights “hate women” is not only unsubstantiated, and absurd, but is also as futile a statement as when the radical feminists call all men rapists, or say that all conservatives are stupid. And Miss Hempel, in her calmer modes, acknowledges this, since she now says that “abortion activists think that they are helping women.” Well, why would they do so if they hate women? If one thinks that the foetus has a right to life, and one wants to prove it, by all means do so. But emotional outbursts aren’t convincing.

USPS v. Flamingo Industries: The decision in Flamingo was no less disappointing than Locke. I’ll have a lot more to say about this in the law reviews, but mostly the problem was that the Court simply refused to take the issue seriously.

The case was about whether the Sherman Antitrust Act can apply to the United States Postal Service—not for its mail delivery activities, but for things not related to mail delivery. In 1970, the Congress waived the Postal Service’s sovereign immunity and made it an “independent establishment.” The Court has repeatedly said that this was intended to “launch[ ] [the Postal Service] into the commercial world,” and make its “liability the same as that of any other business.” Franchise Tax Bd. of California v. U.S. Postal Service, 467 U.S. 512, 520 (1984). But the Court now says that a mere waiver of sovereign immunity isn’t enough to subject the USPS to the Sherman Act. Instead, there’s a “second question, which is whether the substantive prohibitions of the Sherman Act apply to an independent establishment of the Executive Branch of the United States.” What does this second question really mean? In every case, if there is no immunity, the “second” question will be “does the law apply?” We answer that by looking at the words of the law, and if that’s ambiguous, at the intent of the drafters of the law. Well, the law says that no person may monopolize. Is the USPS a “person”? Well, it’s not a government agency; it’s a business like any other. And what were the intentions of the framers of the Sherman Act? As I’ve explained at length elsewhere, they did intend for it to apply to government-run market-participants, such as railroads. So it should apply.

Why doesn’t it? Well, the Court said the USPS acts a lot like a government agency: The 1970 Reorganization Act declared the USPS an independent agency of the Executive Branch, not a public corporation; the USPS has certain government powers, including eminent domain; it is charged with “nationwide, public responsibilities” concerning mail delivery; and it cannot choose its own prices, since its rates are set by the Postal Commission. But the designation as an “independent agency” does not make the USPS part of the Executive Branch. And in United States v. Trans-Missouri Freight Ass’n, 53 F. 440 (C.C.D. Kan. 1892) rev’d 166 U.S. 290 (1897), the Supreme Court applied the Sherman Act against a government-created market-participant corporation which was also charged with public responsibilities, and could also exercise eminent domain. Anyway, the fact that these details are combined with “isolat[ion]...from Presidential or congressional control over its program activities,” militates in favor of greater scrutiny under anti-monopoly laws, because the USPS can now use its government mask to protect it when engaged in anti-competitive, purely private, profit-seeking activities.

Does it engage in such activities? Absolutely. The USPS is engaged in several businesses unrelated to mail delivery, at rates which it sets for its own profit, and in markets where it openly competes with private firms. At oral argument, Harold Krent, attorney for Flamingo, explained that “the Postal Service has a roving mandate to decide to go into the business of greeting cards in competition to Hallmark...sell bicycling gear, to go into the market fo the package industry to go into the market of calling cards and to compete against AT&T.” Unlike the prices charged for stamps, these sideline operations are not regulated by the Postal Rate Commission, but are set on a profit-maximizing basis. Insulated from the Sherman Act, the Postal Service becomes precisely what the Act’s framers (and the framers of the Constitution) most despised: a legally protected corporation using power simply for its own profit. But in its opinion, the Court simply dodged this issue:

The Postal Service does operate nonpostal lines of business, for which it is free to set prices independent of the Commission, and in which it may seek profits to offset losses in the postal business. The great majority of the organization’s business, however, consists of postal services. Further, the Postal Service’s predecessor, the Post Office Department, had nonpostal lines of business, such as money orders and postal savings accounts. As a Cabinet agency, the old Post Office was not subject to the antitrust laws. The new Postal Service’s lines of business beyond the scope of its mail monopoly and universal service obligation do not show it is separate from the Government under the antitrust laws.

That’s it. This is the Court’s entire analysis. No case citations. No discussion of the intent of the Sherman Act’s framers. No substantiation for the claim that the “old Post Office was not subject to the antitrust laws.” Instead, simply because the mail-delivery operations (which were irrelevant to the case) happen to outnumber the Postal Service’s private, admittedly anti-competitive activities, it is given immunity across the board. Under USPS v. Flamingo, the Postal Service may undertake an indefinite number of for-profit enterprises, engage in anti-competitive behavior—and simultaneously regulate its own competition—with impunity.

Locke v. Davey: The decision in Locke v. Davey was really a disappointment, and I think clearly wrong. I was surprised to find Rehnquist and Kennedy on the side they were on.

Washington State gives scholarships for college students of all sorts of things—except students of theology. The state says this is because the state Constitution prohibits them from spending money on religious studies. The question in this case was, does that decision burden the “free exercise” of religion, which would violate the federal Constitution?

The Court said no. It began by explaining that the Establishment Clause did not require the state to so discriminate. Fine—but that was irrelevant, because the case was not an Establishment Clause case at all. Then the Court refused to rely on the case of Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). That case had struck down a city ordinance on the grounds that it had been passed out of the city council’s distaste for a particular religion. (The city council wanted to put down practice of Santeria, of which animal sacrifice is a part, so they banned animal sacrifice.) Why did Hialeah not apply here? Rehnquist writes “In the present case, the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction.” Thus the refusal to fund is not a burden of the same time that a choice to punish would be. This is reasonable, since we know from some other cases that the state can choose to fund certain kinds of expressive conduct and not others. But those cases are where the government itself is speaking—and that’s not what’s going on here. Instead, the government has created a certain degree of aid, and is now refusing to give that aid to a particular group just because they’re religious. In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), the Supreme Court held that the University could not refuse to fund a religious publication when it was funding all the other publications on campus. So distinguishing between refusal to aid on one hand and intentionally burdening on the other seems pretty weak.

Yet the Court also refused to rely on Rosenberger. In a footnote it says that the scholarship program “is not a forum for speech” the way the publications in Rosenberger were. But Rosenberger was not just a free speech case. The question there was whether government can cleverly institute viewpoint discrimination by funding all viewpoints except one. And the Court also held that this discrimination did not violate the Equal Protection Clause of the Fourteenth Amendment because “the program is not a violation of the Free Exercise Clause, [so] we apply rational-basis scrutiny to his equal protection claims.”

Justice Scalia rejected all of this in his dissent by pointing out that “When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.” In the Regulatory Welfare State, I think this is the only reasonable understanding of burdening religious freedom; such discrimination will generally take the form of refusing to confer a benefit given to others. But Rehnquist did not buy this argument because, well, religion is just different: “training for religious professions and training for secular professions are not fungible. Training someone to lead a congregation is an essentially religious endeavor. And the subject of religion is one in which both the United States and state constitutions embody distinct views—in favor of free exercise, but opposed to establishment—that find no counterpart with respect to other callings or professions.” That strikes me as really the fundamental error in the case. If the federal Constitution requires (and it does) agnosticism with regard to religion, it also requires agnosticism toward many other things. The Constitution doesn’t give government authority to benefit lawyers over doctors, or make Republicans eligible for benefits denied to Democrats: it is required to be agnostic in this respect. It is also required to be agnostic with respect to religion. Just as the state could not open the doors of its public elementary schools to everyone but religious folks, so it should not be allowed to offer a general benefit in the form of scholarships except for those who want to study theology.

I wasn’t sure what I thought about this case before. I was wavering. But this decision leaves so much to be desired that I find myself strongly on Scalia and Thomas’ side.

Speaking of reasonableness: I’ve lately been re-reading the Federalist, for the first time since high school, and I encountered the following passage, that reminded me of the proposed heteros-only marriage amendment:

As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

While I tend to believe homosexuals should be allowed to be married, I agree with Countertop Chronicles that by going too far too fast, San Franciscans especially have ultimately done much harm to their cause.

Misogyny: Sarah Hempel says defenders of the right to obtain abortions “actually hate women and the beauty [they] possess.” She cites no evidence for this claim. I’d like to see some, because that’s certainly not my impression. There are, of course, radicals in every organization, but by and large defenders of abortion rights don’t seem to disagree with the statement “that women are beautiful, wonderfully and fearfully made—wombs and all,” or that “The gift that we give the world by bearing children ought to be celebrated and revered.” So far as I know, no reasonable defender of abortion rights—such as myself—thinks otherwise. I don’t hate women, and I think childbirth is a miracle. Nevertheless, I and those who agree with me simply believe that abortion ought to remain legal. Conservatives are understandably tired of being accused of being Taliban-like shacklers of femininity who pine away for the days of coverture, and certainly there are a handful of wackos out there whom this description fits. But it is no more fair to describe defenders of abortion rights as haters of women than it is to describe opponents of abortion rights as haters of women, and surely it does little more than to soothe the egos of one’s own cohorts to express oneself in those terms.

Bad briefing: Prof. Volokh’s note about bad writing puts me in mind of a case my colleague Dave passed along recently, B.A.M. v. Salt Lake County, 2004 WL 316141 (Utah App. 2004), in which the following footnote appears in the dissent:

To the extent BAM has successfully persuaded me of the fundamental soundness of its position, that success should not be attributed, in any degree, to its counsel’s unrestrained and unnecessary use of the bold, underline, and “all caps” functions of word processing or his repeated use of exclamation marks to emphasize points in his briefs.... While I appreciate a zealous advocate as much as anyone, such techniques, which really amount to a written form of shouting, are simply inappropriate in an appellate brief. It is counterproductive for counsel to litter his brief with burdensome material such as “WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!”

Id. at *19 n.30.

Ah yes: The old “argument from wow.” It is certainly true that familiarity with the works of nature fills one with awe, but it is totally irrelevant to the question of whether those works are the creation of a conscious Intelligence. Many things that are not created by any creator are spectacular and awesome. The English language, for instance, or the price mechanism in a free market. The eye example is a standard reference, but has been refuted sufficiently elsewhere.

I think the argument is primarily the result of a common misunderstanding of evolution: the notion that it posits “mere chance.” Evolution is not about “mere chance.” Mere chance happens every day, and isn’t really surprising. (As Richard Feynman used to put it, “I drove to work today behind a car whose license plate was 5EGA543, can you imagine how remote are the chances of that? And yet it happened!”) What evolution posits is the nonrandom selection of random variables. Nonrandom selection, over the course of aeons and aeons certainly can—indeed, does—account for the jaw, and the eye, and all the little fishies in the sea.

More on intelligent-design creationism here.

Speaking of Mastication. Mrs. Henry Adams remarking on Henry James: “It’s not that he ‘bites off more than he can chew,’ but that he chews more than he bites off.” In one epigram, all you need to know about Henry, brother to William.

On Mastication and Intelligent Design. I spent last weekend in Chicago with several thousand dentists at the annual ‘Mid-Winter’ dental meeting. A good time was had—in spite of some seriously dispiriting meteorology.

At the conclusion of a lecture on implants (of the dental sort), I spotted the renowned Dr. Peter Dawson in the audience and stopped over to say hello. Dawson’s massive treatise on the workings of the temporo-mandibular joint (TMJ) is one of the standard texts in the profession, the best-selling dental tome of all time, and the spark of a major revolution in the dental operatories of the West. Dawson is justly regarded as a real live scientific genius.

Reading the book’s dedication some years ago, I made note of his brief but vaguely approving reference to the “creator” of the human masticatory apparatus —i.e. the staggeringly complex system of muscles, bones, joints, tendons, ligaments, lymphatics, nerves and teeth that allow us to do such mundane things as speak and chew.

I asked Dawson if he could expand on his “creator” reference. He obliged by offering a philosophical comment: “The more you understand about the human masticatory apparatus, the harder it becomes to remain an atheist.”

Dawson would likely approve of this passage from Robert Bork’s Slouching Towards Gomorrah, on the subject of ‘Intelligent Design’: “Scientists at the time of Darwin had no conception of the enormous complexity of bodies and their organs. Behe [Michael Behe, microbiologist] points out that for evolution to be the explanation of features such as the coagulation of blood and the human eye, too many unrelated mutations would have to occur simultaneously.” (p.294)

Though I’d be dismayed to have one of my eyes ‘coagulate’—an unpleasant mutation there—I’d say it’s progressively tempting to agree with Behe, and Dawson, at the four-year point of my masticatory studies. The deeper the science, the greater the inclination to marvel.

Flamingo update: Here’s the decision in Flamingo Industries. Haven’t read it yet, but it appears to be wrong. (Readers will recall I’ve been following this case for a while.) More on it later, no doubt.

Johnny’s gone for a soldier: Dr. Dunn’s post on Paul Revere reminds me of a question. One of my favorite old American war-time tunes is “Johnny’s Gone For A Soldier.” This song dates back to the Revolution and before—it’s based on an Irish or Scottish folk tune. But here’s the question. There’s a stanza that says

I’ll dye my dress; I’ll dye it red,
And in the streets go begging for bread….

What does the red-dyed dress signify? Is it a symbol of prostitution like the yellow ticket in Dostoyevsky’s Crime And Punishment?

Sticks and stones: Tyler Cowen says “our civilization might never get over a major asteroid strike.” I think he overlooks the great boon that such a thing could be to our civilization, if timed and aimed correctly. Can our civilization afford not to have a major asteroid strike?

Figures:

You will be smothered under a rug. You're a little
anti-social, and may want to start gaining new
social skills by making prank phone calls.


What horrible Edward Gorey Death will you die?
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FMA: Dr. Masugi is again likening gay marriage to slavery. There’s no freedom to own a slave, and there shouldn’t be freedom to marry a person of the same sex, because “These constitutional restrictions are good constitutional law and good morality.” Well, that’s brilliant! We can just write good morality into the constitution, regardless of whether the behavior in question affects other people or not. Next on the agenda: constitutionally prohibit laziness and gossip and drinking and smoking….well, not those last two. ‘Cause conservatives like those things. Let’s just ban the things we don’t like.

My candidate: I’m voting for this guy.

Paul Revere, Dentist. Readers of Sandefuriana and the Founding Fathers might be surprised to know that Paul Revere, in addition to being a fine horseman, was also a dentist. Here is Revere’s advertisement in the Boston Gazette for September 19, 1768:

“WHEREAS many Persons are so unfortunate as to lose their Fore-Teeth by Accident, and otherways, to their great Detriment, not only in the Looks, but speaking both in Public and Private -- This is to inform all such, that they may have them replaced with artificial ones, that looks as well as Natural, & answeres the End of Speaking to all Intents, by PAUL REVERE Goldsmith, near the Head of Dr Clarke’s Wharf, Boston.”

What the...: There are things you never think you will ever say. And for me, it was: Tom Smith is absolutely right on.

Of Maugham’s Human Bondage. Jeffrey Meyers, the incredible human biography machine, has published his 42nd this month—Somerset Maugham: A Life. As a long-time unembarrassed connoisseur of Maugham, and Myers, I made the purchase on the day of release (Feb. 20) and have since proceeded to page 16. Around 374 to go.

Though Maugham tapped out a few mediocre books in his long literary career, he also wrote a handful of subtle and genuine brilliance: Of Human Bondage, The Razor’s Edge, Cakes and Ale and The Summing Up, for instance. They sold well when published, and still sell well today.

Yet Maugham has always been scorned by the critics, has never gained admission into the canons of eminentia, and has seldom ended up on an academic syllabus. He remains the sort of writer who is always read but is never taught.

Which is a shame. Maugham’s Achilles heel was to have written clearly and to have told stories with some degree of linear logic—two of the great no-nos of modernism. Ours is an era where unambiguity invites dismissal by the kinds of readers, i.e. academics, who can’t bear to read something they can actually understand.

It’s discouraging to know that so many American college students, none too well read and none too capable of clear composition, are obliged to study the labyrinthine likes of Woolf, Stein, Pynchon, and Gaddis – not to mention Faulkner at his furthest from the barnyard, and Joyce after completing his “declension from talent to absurdity.” (Larkin)

Imagine teaching students to draw from a Jackson Pollock textbook—that’s more or less the story of English literature today, at a time when non-modernism has never been more necessary.

But the times may eventually change, and the academic world may yet come to view Maugham as Orwell viewed him, as relayed by Myers: “the modern writer who has influenced me most is Somerset Maugham, whom I admire immensely for his power of telling a story straightforwardly and without frills.”

There’s more to it than that, of course, but Orwell’s earnest compliment is a good start in the appreciation of Maugham—an appreciation that is likely to grow, in time, thanks in part to Myers’ latest effort.

Dinner With Chairman Mao: Some weeks ago, in the hip & trendy Cherry Creek enclave of Denver, a $2 million restaurant opened with a catchy new theme: to wit, the glorification of Chairman Mao Tse-Tung.

Setting foot inside “Mao,” you find two huge Mao portraits, a custom-made Mao bust, and slick menus fashioned after the Little Red Book. A hagiographic essay on the menu’s back page sanitizes the Chairman’s legacy: “Mao was a visionary, a long-distance swimmer whose simple words still reverberate throughout China’s culture… He floated over history. What came natural for him set trends for others. Witness the recent revival of his signature high-collared jacket.”

Though you might have expected an ounce of controversy around such homage to the greatest mass-murderer in human history, the scandal that hit the Denver papers at the grand opening had nothing to do with genocide, and everything to do with pornography. Seems the restaurateurs thought it would be clever to run soft-porn films on the video screens at the bar – thus irritating sundry patrons, and thus undermining their ethical free pass.

Amidst all the talk of pornography, swimming and high-collared jackets, not much was mentioned about the nature of Mao’s gruesome dictatorship, which has been usefully summarized in John Derbyshire’s work on China. A few highlights: 1) Land Reform: 2-5 million dead, 4-6 million landlords and kulaks sent to camps. 2) Urban purges to 1957: At least 1 million dead, 2.5 million sent to camps. 3) Hundred Flowers and Anti-Rightist campaigns: 770 thousand dead, 400-700 thousand sent to camps. 4) Great Leap Forward and consequent famines: 25-40 million dead, unknown number of peasants sent to camps. 5) Great Proletarian Cultural Revolution: Several hundred thousand dead, probably 1-2 million sent to camps. 6) Annexation of Tibet: Death toll could be as high as 800,000 – with a massive and prolonged attempt at cultural annihilation.

Now, the restaurant seats 220 individuals. If every night for a year "Mao" was filled to capacity, as it seems to have been so far, that would add up to 80,300 customers. If you add up the mid-line estimates of those killed under Mao’s rule, the numbers add up to 40 million. If you divide the number of those killed under Mao by those eating at "Mao’s," that leaves some 500 dead Chinese (plus a few Tibetans) for each individual Cherry Creek patron during year one.

So let's raise a toast—to an American capitalistic restaurant glorifying a communist tyrant who starved his people by the millions. With one further, based on Bill Buckley's note from China in 1983: “There were ten thousand restaurants in Shanghai when Mao took over, fewer than one thousand today.”

17200 abuse of the day: In Bernardo v. Planned Parenthood Federation of America, 9 Cal.Rptr.3d 197 (2004), the plaintiff sued abortion clinics under California’s unfair competition law, arguing that providing abortion without disclosing alleged health threats to the mother, was unfair competition under Business and Professions Code 17200. The Court of Appeal dismissed the case under California’s anti-legal-harassment law (known as the anti-SLAPP law), since it was obviously just an attempt to hinder the clinics without a legitimate legal basis.

New economic liberty article: Check out Anthony B. Sanders, Comment: Exhumation Through Burial: How Challenging Casket Regulations Helped Unearth Economic Substantive Due Process in Craigmiles v. Giles, 88 Minn. L. Rev. 668 (2004). Looks to be the first serious student article on this very important case.

More on marriage: Responding to my earlier post about gay marriage, a Mr. Richard Feder, of Fort Lee, New Jersey, writes,

President Bush should just be honest and admit that his views on marriage are based on his relationship with Jesus Christ and his view that the Bible is the infallible word of God! Conservatives sound even sillier than they normally do when they try to dress up theological arguments as secular arguments.

There is certainly a place for reason, deduction and intuition (indeed, our reason is the chief way we are made in God’s image); the Bible doesn’t say much about whether the state should sanction marriage at all, or whether we should amend the Constitution to keep marriage pure. The Bible, however, is clear that marriage is between a man and a woman; you can see this most readily in the creation account as well as Christ's teaching about marriage (see Matthew 19).

Christians do more damage to the cause of Christ by making this type of argument than they would by remaining silent on the issue in the first place.

I agree, Mr. Feder. Bush and his supporters should stop trying to claim that their interest in this is a reasonable, secular interest in the protection and betterment of society and individual flourishing, and should admit that their views are based on mysticism, superstition, ignorance and bigotry.

Marriage amendment: I had hoped—though admittedly, not with much expectation—that the President’s endorsement of a heteros-only marriage amendment would make a serious effort at justifying such a questionable idea. I was, of course, disappointed. Conservatives will rejoice, but if this is the best argument they can make, they are clearly ruled by passion and not by reason.

On a matter of such importance, the voice of the people must be heard.

But surely not every important thing is open to democratic debate and majority rule. Surely there are some things that, although “important,” are still private.

The Constitution says that "full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state.” Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America.

But this clause does not require states to recognize each other’s marriages, as I’ve explained. That clause also goes on to give Congress exclusive authority to set the rule for such recognition, and they did so in the perfectly constitutional Defense of Marriage Act. Sure, courts might wrongly rule otherwise, but why not wait until they do so before passing a Constitutional amendment?

Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city.

Ah, yes, that’s true. Of course, it was precisely to prevent the federal government from going into states and cities in issues like this that we created a limited federal government. We can change that through an amendment if there’s good reason. And what is the good reason, Mr. President?

The union of man and woman is the most enduring human institution….

But although it’s endured for centuries, evidently it’s so weak that allowing homosexuals in San Francisco, who have been together for decades, to solemnize their union with legal vows, is going to obliterate it from the face of the earth?

…the commitment of a husband and wife to love and to serve one another promotes the welfare of children and the stability of society. Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.

But as I’ve repeatedly explained, marriage in America is not about children or social stability. If it were, divorce would be illegal; infertile couples would not be marriageable. If it could not be separated from religious roots, then the state would not permit secular marriage ceremonies. Marriage is not about these things—it’s about the commitment that you mentioned. But why cannot gays have that commitment to each other? Just because they’re gay?

Government, by recognizing and protecting marriage, serves the interests of all.

Therefore we need to stop recognizing and protecting marriages.

The amendment should fully protect marriage while leaving state legislatures free to make their own choices in defining legal arrangements other than marriage…

Protect it from what? From other people getting married. How do their marriages threaten the marriages of anyone who’s already married? Ken Masugi says it nullifies all existing marriages, but that turns out not to have been true, since the divorce rate has not noticeably increased this month. And if it were true, how would allowing states to grant “civil unions” protect heterosexual marriages? So we’ll let states grant marriages to homosexuals, but not call them marriages—that’s the only difference. And this is worth a constitutional amendment?

Our government should respect every person….

Except that it should also perpetuate the ludicrous notion that homosexuals are so revolting that they’ll get marriage dirty by just touching it. Go away! It’s my sacrament! I’m gonna tell Mom!

Bush has not provided any sort of convincing argument for an amendment. He has not explained why it’s anyone’s business, let alone why gay marriage is a calamity. He has not convincingly explained why the Defense of Marriage Act is insufficient. He has not explained why gays are incapable of “commit[ting]…to love and to serve one another.” He has not explained why marriage is about children even though married people aren’t required to have children, or why marriage is about society even though it’s such an intensely private institution. Instead, Bush relies on stereotypes and subtle defamation of homosexuals, just as previous generations did the same to prohibit blacks from marrying whites. Perhaps there are rational reasons that homosexuals ought not to be allowed to marry, and perhaps there are rational reasons that amending the Constitution is necessary. But instead, all we get are bigotry and hysteria. Bush and his supporters, if they had an ounce of humanity, would be deeply ashamed of making such shoddy and unworthy arguments.

Disney concert hall: Looks like Keith Jarrett isn’t the only one who hates the Mickey Monstrosity.

Supreme Court decisions: Interesting. Another Thomas-Scalia split (not nearly as unusual as people claim).

Guinn: Remember the Guinn v. Nevada Legislature case? I wrote about it for National Review Online. My amicus brief in the United States Supreme Court urging the grant of certiorari is online here.

UCC question: In response to the question about the UCC that I found, a Mr. Richard Feder of Fort Lee, New Jersey, writes

Here, the bartender is selling alcoholic drinks (which are goods, because they are movable at the time of sale). However, the bartender is also rendering a service—mixing the drinks, pouring them in pretty glasses, filling up peanut bowls, etc. Hence, a court will probably view this as a “mixed” contract—one that covers both goods and services.… I don’t know the ratio of goods to service on a bar bill, but I’m willing to bet that the drink itself costs a little more than paying the bartender (he relies mostly on tips). So if the court looks at where most of the buyer’s money is going, it seems that this is predominately a goods contract, and the UCC will apply. The fact that usually a bar tab reflects the drinks sold (and not a service charge) weighs in favor of treating this contract as a goods contract.

However, if the court examines why the buyer purchases his drinks from a bar rather than a liquor store, it seems that this is predominately a service contract. After all, liquor is usually cheaper from the store. The buyer is probably seeking something at the bar besides goods—perhaps the bartender's expertise in mixing drinks, or the ambiance of the bar, or even the attractiveness of the single patrons. In any case, the buyer's purpose for contracting with a bartender and not a liquor store is because he wants something intangible. Intangible things are not covered by the UCC, and a court should apply rules governing service contracts.

Although a court may apply the UCC to this service contract by analogy, it probably will not do so in instances like these. Otherwise, bar patrons can ditch their tab by acting drunk and busy bartenders will have to test for intoxication in each person who buys a drink in order to receive payment. While a court may want a bartender to shoulder this burden so that he is careful not to sell too much liquor to one patron, the difficulty in monitoring each patron's intoxication level and tenets of personal responsibility demand that a bar patron must manage his own alcohol consumption so that he does not enter into further, ill-advised transactions.

Now here’s the real question. How can you tell Mr. Feder is a law student? Answer: He writes three paragraphs, and never comes to a conclusion.

God and liberty: Ed Brayton writes “I don’t see much reason to believe that God plays any role in the preservation of liberty.” Actually, the existence of God plugged an important gap in the Lockean reply to Thomas Hobbes, by supplying a justification for the inalienability of rights. The citizen could not give up his right of revolution, Locke argued, just as a slave could not choose to become a slave, because his freedom was inalienable. This was important because Locke’s goal was to demonstrate the moral limits on the social contract; inalienability proved that there could never be a legitimate absolute state. But why would the right to life and liberty be inalienable? Because God created individuals and did not give up His ownership of His creation. As an atheist myself, I don’t think that religion is necessary for freedom, but religion did play an important part in Locke’s natural rights theory.

When I Was One-and-Twenty by A.E. Housman

When I was one-and-twenty
I heard a wise man say,
“Give crowns and pounds and guineas
But not your heart away;
Give pearls away and rubies
But keep your fancy free.”
But I was one-and-twenty,
No use to talk to me.

When I was one-and-twenty
I heard him say again,
“The heart out of the bosom
Was never given in vain;
‘Tis paid with sighs a plenty
And sold for endless rue.”
And I am two-and-twenty,
And oh, ‘tis true, ‘tis true.

Fame!: Thanks to Liberty Log for the permalink. I’ve reciprocated as always. And thanks to Liberty Log also for a priceless Thomas Jefferson quote I’d never heard of before, from letters that he wrote the same day to both Edward and Robert Livingston, about the “necessary and proper” clause as it would be interpreted a few years later in McColloch v. Maryland: “Congress are authorized to defend the nation. Ships are necessary for defence; copper is necessary for ships; mines necessary for copper; a company necessary to work mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack built?’ Under such a process of filiation of necessities the sweeping clause makes clean work.”

Quiet: Trivial Pursuits quotes the famous Henry David Thoreau line, “the mass of men lead lives of quiet desperation,” and comments—in terms evocative of my earlier post—that “it’s the adjective ‘quiet’ that I find so deeply haunting.” Agreed. In fact, Thoreau continues,

What is called resignation is confirmed desperation.... A stereotyped but unconscious despair is concealed even under what are called the games and amusements of mankind. There is no play in them, for this comes after work. But it is a characteristic of wisdom not to do desperate things. When we consider what, to use the words of the catechism, is the chief end of man, and what are the true necessaries and means of life, it appears as if men had deliberately chosen the common mode of living because they preferred it to any other. Yet they honestly think there is no choice.

Bases: Ed Brayton is certainly right that the anti-Darwin arguments of Bill Federer are patently absurd and gloriously ignorant. But I must disagree with his response to Federer on the issue of the “deity-based belief system” of the founding fathers. Most of the founding fathers did, indeed, have a “deity-based” belief system, including such notable skeptics as Benjamin Franklin and Thomas Jefferson. Brayton writes, “If the founding fathers believed that your rights couldn’t be taken away because they came from God and not government, why did they turn around almost before the ink was dry on the first amendment and pass the Sedition Act?” This statement reflects some confusion of terms. Jefferson, who led the opposition to the Sedition Act, asked “can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when reflect that God is just: that his justice cannot sleep for ever.... [In a conflict over slavery, t]he Almighty has no attribute which can take side with us....” Jefferson, with Locke behind him, did not believe that rights could not be violated by anyone but God; they believed that rights could not rightfully be violated—or even, in some cases, voluntarily surrendered—because they were the “inalienable” gift of God. Man could not choose to surrender himself into slavery, or kill himself, because God was the Author of our rights. Certainly the Revolutionary generation was not ignorant of the fact that there are those who try to violate the rights of others. They would have said, then, that your rights cannot be “taken away by the government,” in the sense that the government can never really take away your freedom, because it is inalienable; if it tries, you have the right to reclaim them—thus your rights haven’t really been taken away: just infringed.

Secondly, Brayton wrote that “founding fathers did believe in second class citizens and wrote a constitution that explicitly declared a large percentage of the population to not even be fully human.” This, however, is a common modern exaggeration. Neither the Constitution nor the framers—with the possible exception of Pinckney—denied that the slave was a human being, and the 3/5ths clause was not designed to do so. That it reflected an evil institution is undeniable, but it did not reduce the rights of slaves any (it hardly could!), and it did not reflect the framers’ belief that the slaves were “not fully human.” Madison’s defense of the 3/5ths clause in Federalist 55 is notably reticent; written in the form of a monologue by a southerner, Madison hides behind a mask behind a mask, as William Lee Miller explains. Indeed, Madison defends the clause because it regards slaves as 2/5ths of a man, which was an improvement by approximately 2/5ths! “In being compelled to labor,” he writes,

not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property....because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers....Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the SLAVE as divested of two fifths of the MAN.

Elsewhere, he clearly condemns slavery—writing, for instance, “Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!” Were slaves second-class citizens? Certainly; if they even were citizens, which many at the time would have denied. But the three-fifths clause is not proof of that. What’s proof of that is the fact that the slaves could not vote for the representatives that their populations gave to their masters—that is to say, the three-fifths clause gave white slaveholders more representation in the House, but did not allow the slaves, of course, any representation at all!

Micha Ghertner: “I’ve noticed lately that it's a lot easier to argue about the benefits of free trade with left-liberals than it is with conservatives, primarily because left-liberals do not tend to be rabid nationalists who care only about their fellow countrymen, let the rest of the world be damned.” I’ve noticed the same.

Art: Countertop Chronicles features a Vermeer (the real “painter of light”) as the art piece of the week.

Fame!: Check out my booth at the Carnival of Capitalists.

What you missed over the weekend: Libertarian Bookworm featured Bastiat’s The Law. Plus, the nature of law; I review the new book about the Slaughter House Cases; a question about the UCC; thoughts on being a man; and what happens to Constitutional amendments?

Got no better: The Slaughterhouse Cases book did not improve. At the very end of the penultimate chapter, Labbé & Lurie write in a footnote that “our purpose is to explain rather than condemn the holdings” (231 n. 75), but they don’t even do that, really. They provide plenty of historical discussion, but as far as explaining the legal issues involved, they make only halting attempts, and these are highly flawed. Consider, for instance, this passage:

Field concluded his dissent with the declaration that “this equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life…is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition….” Field’s heavy reliance on equality of right can be seen as a weakness in his rationale. As a justice of the Supreme Court, he was not in the position of a municipal official in a large city to observe that some pursuits—the privilege of operating a slaughterhouse, for example—could not be allowed to all, consistent with public health and good order. As constitutional scholar Thomas Cooley had observed in 1868, “there are unquestionably cases in which the state may grant privileges to specified individuals without violating any constitutional principle, because, from the nature of the case, it is impossible they should be possessed and enjoyed by all” (227).

But Cooley was discussing natural monopolies—things like roads—which had routinely been created by government issuing monopoly charters to private companies. And Field directly addresses this point in his dissent, when he writes

It is also sought to justify the act in question on the same principle that exclusive grants for ferries, bridges, and turnpikes are sanctioned. But it can find no support there. Those grants are of franchises of a public character appertaining to the government. Their use usually requires the exercise of the sovereign right of eminent domain. It is for the government to determine when one of them shall be granted, and the conditions upon which it shall be enjoyed. It is the duty of the government to provide suitable roads, bridges, and ferries for the convenience of the public, and if it chooses to devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may of course stipulate for such exclusive privileges connected with the franchise as it may deem proper, without encroaching upon the freedom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the government, is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual.

Slaughter House, 83 U.S. (16 Wall.) 36, 88 (Field, J., dissenting). The difference was that the slaughterhouse monopoly was entirely created by the government, supposedly as a convenient mechanism for protecting public health and safety. The argument that it did protect the public was highly questionable, since that rationale was in no way advanced by giving the ownership and operation of the central slaughterhouse to a single privately owned company. As Labbé & Lurie confess, “[t]he same goal could have been achieved with less controversy by granting the franchise to a consortium of butchers or to an agency of the state, but the Louisiana legislature of 1869 chose to do otherwise” (244, emphasis added). Had the slaughterhouse been government-operated, with the fees going into the public treasury, the monopoly characteristic would have been greatly diminished, and the analogy to a government-operated railroad would have been much stronger: government routinely gave railroads special privileges on conditions, such as that they must not refuse to carry any passenger, or that they submit to regulation of their rates by a government commission. Cases in which these things had occurred had been routinely upheld by courts, because such rate regulations and things were held to satisfy the “public use” requirement—which meant that the government wasn’t being used to confer “naked preferences.” In fact, the best argument the state had in Slaughter House was just this argument—they claimed that the Crescent City Company was legally required to allow any butcher to use their premises.

The difference between a natural monopoly and a monopoly created by law was at least clear to Justice Brewer, who explained that “[t]here are two kinds of monopoly; one of law, the other of fact. The one exists when exclusive privileges are granted. Such a monopoly, the law which creates alone can break; and being the creation of law, justifies legislative control. A monopoly of fact any one can break, and there is no necessity for legislative interference.” Budd v. New York, 143 U.S. 517, 550-51 (1892) (Brewer, J., dissenting). But Labbé & Lurie nowhere discuss the difference between natural monopolies and government monopolies; nowhere spend even a page discussing the American anti-monopoly legal tradition (which, less than 20 years after Slaughter House, would result in passage of the Sherman Antitrust Act); and never attempt to tell us what, if any, limits there are on government’s power to create monopolies on the pretext of public health. As Steve Simpson notes, if there are no such limits—or if the “limits” are the illusory limits provided by the rational basis test—then there is no reason government cannot give monopolies to toothbrush makers or mattress makers. See Steven M. Simpson, Judicial Abdication And The Rise of Special Interests, 6 Chap. L. Rev. 173, 180 (2003).

Labbé & Lurie begin their book by urging us not to look back at the past with the anachronistic assumptions of the present. And yet their book sees the Slaughter House Cases entirely through the lens of the rational basis regime created in 1937. They almost entirely ignore the very strong legal tradition behind the dissenters, and they provide no analysis of the Fourteenth Amendment which might support the majority opinion. We waited for a century and a quarter for a book about Slaughter House. How disappointing that it would turn out to be this one.

Another bad book: Well, I’m a little over halfway through Ronald Labbé & Jonathan Lurie’s new book, The Slaughterhouse Cases, and it is extremely disappointing.

The book is good at covering the historical background of the cases, and describing the extraordinarily complicated beginnings of the lawsuit. But when it comes to the merits of the arguments presented to the U.S. Supreme Court, the book takes a dive. The authors provide no background on the drafting and passage of the Fourteenth Amendment; we are given practically no discussion of the intent of the framers of that Amendment, or of the American legal tradition as it relates to either the concepts of sovereignty or of monopolies in general. There is but brief mention of Edward Coke, and none of the other multitude of cases which, prior to 1872, had held that the common law does, indeed, protect a right to earn a living, as I pointed out in my The Right To Earn A Living, 6 Chap. L. Rev. 207 (2003). Absent this background, Labbé & Lurie are at a loss to explain what they necessarily conclude was a totally off the wall interpretation of the Fourteenth Amendment advanced by the butchers. Thus they hypothesize—and provide little evidence for it—that John Campbell, the butchers’ attorney, was concocting his allegedly absurd interpretation as a ruse to destroy Reconstruction itself. They characterize the butchers’ arguments are “clever[] and cynical[]” (194); they claim that “congressional debates concerning the new amendment’s scope provided little vindication” (192 n.37) for the butchers’ arguments—and yet they do not quote any of these debates except in a paragraph which actually supports the butchers’ arguments. They assert that Chicago v. Rumpff, a case on which the butchers strongly relied, was “a decision based on notably bogus reasoning” (190), but don’t provide any real argument for this; they claim that the Fourteenth Amendment was “adopted with altogether different purposes in mind” (185) than protecting the butchers—even though in the single paragraph that discusses the intent of the Amendment’s drafters, they quote Lyman Trumbull, John Bingham, and Charles Sumner, who all said that the Amendment was not intended to be limited to protecting freedmen. (They don’t quote John Sherman at all, or even mention him in the index.) They provide page after page of evidence that the Slaughterhouse Act was the product of bribery, and admit in one line that this evidence “tend[s] to incriminate” (97), but then go on to deny that the bill was the product of corruption, or at least to downplay the importance of that fact. The index contains no reference to United States v. Cruikshank. Most importantly, Labbé & Lurie refuse to address what the judges on the Miller Court would have taken very seriously—the issue I discussed earlier about the purposes of government, based on natural rights theory: they ridicule the argument that the slaughterhouse monopoly was “involuntary servitude,” and yet to the nineteenth century legal mind—particularly the Radical Republicans—any government which took property from some people and gave it to others à la a “naked preference”—even if it did so only through the erection of barriers to entry—was indeed involuntary servitude, since it took tax money and the value of property from the public in order to confer special benefits on the basis of raw political power; precisely what Lincoln called “the same old serpent that says you work and I’ll eat.” Labbé & Lurie quote one of the butchers’ briefs: “When ‘you tell me that I cannot use a portion of my property at my home…that I must for the profit of a company lately incorporated, place it in their possession and under their control, under a tariff of prices fixed, not by me, but by a corporation, I say that it imposes upon me a servitude’”(197). They reject this argument out of hand without showing why it is wrong or even discussing the matter—as if its wrongheadedness were self-evident.

If Labbé & Lurie think the Slaughterhouse Act was a reasonable law, that’s fine. They should make that argument. If they believe that “a prudent exercise of the police power might justify a resort to exclusive privileges,” (198) and that this resort would be consistent with the Privileges or Immunities Clause, then for God’s sake, they ought to make that argument! But to provide us with a bunch of statistics about how dirty New Orleans was absent butcher regulations, and then to wave the bloody shirt at John Campbell and then ignore the American Anti-Monopoly Tradition (they do not cite Letwin, either), while horselaughing at the butchers’ arguments before the Supreme Court is totally unsatisfying. Even the minority out there who think the Slaughter House Cases were rightly decided will find this book of little help in making their legal arguments.

But I still have fifty pages to go, so perhaps they do come back and fix these problems, and if so, I’ll let you know.

Amendment procedures: Amy Walton asks what happens to Constitutional Amendments, since they obviously don’t write them onto the amendments under glass in the National Archives’ exhibit room. At risk of telling how the clock was made, I’ve got a long answer for her.

First, when James Madison moved for the adoption of the first twelve Amendments to the Constitution, he had in mind that the Amendments would, like other amendments to other laws, be interlined into the original text of the documents. Thus his amendments said to add words and strike out words from the text of the Constitution itself. As William Lee Miller explains, “The main body of the list of civil rights—almost all that survive in the Constitution today—would have been inserted in Article I, section 9, between clauses three and four, in the list of the powers (and nonpowers) of Congress. Madison’s other proposals would have been sprinkled throughout the Constitution in places they appeared to fit…. But Roger Sherman of Connecticut, who was not himself even in favor of the bill of rights, made a proposal that later commentators would endorse: instead of being scattered throughout the document they should all be grouped at the end. ‘We might as well endeavor to mix brass, iron, and clay,’ said Sherman, ‘as to incorporate such heterogeneous articles.’” William Lee Miller, The Business of May Next 256-57 (1992).

Anyway, after this decision was made, the procedures for amendments were set forth by federal statute. Let’s take the Thirteenth Amendment, for example. Under section 2 of the Act to Provide for The Publication of The Laws of The United States And for Other Purposes, 3 Stat. 439 (1818), once an Amendment was passed pursuant to Constitutional procedures, the Secretary of State was required to provide a certificate announcing the ratification, and publish it in various newspapers. So here’s the announcement by the Secretary of State of the ratification of the Thirteenth Amendment. And here is the House of Representatives’ official resolution announcing that the Amendment was passed. This document was then transferred to President Lincoln, who signed it (with his full name, instead of his customary “A. Lincoln”) even though the President does not sign Constitutional Amendments—a fact which, incidentally, has never been explained by those who try to claim Lincoln didn’t much care about abolition. That resolution is located at 13 Stat. 774 (1865). And that’s it.

Today, the procedure is codified, as amended, at 1 USC § 106b, and it says that “Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.”

The ratification proclamation of the Sixteenth Amendment was issued on February 25, 1913, and is codified at 37 Stat. 1785 (but isn’t on line, apparently). There are some who have disputed that the Amendment was properly ratified, but this extremely desperate argument has never been accepted. United States v. Ferguson, 793 F.2d 828 (7th Cir.) cert. denied 479 U.S. 933 (1986); Sisk v. C.I.R., 791 F.2d 58 (6th Cir. 1986); Knoblauch v. C.I.R., 749 F.2d 200 (5th Cir. 1984) cert. denied 474 U.S. 830 (1984); Keogh v. Neely, 50 F.2d 685 (7th Cir.) cert. denied 284 U.S. 583 (1931); United States v. House, 617 F.Supp. 237 (W.D. Mich. 1985).

Breaking and entering: Sarah Hempel, who a while back explained that her “working dating model” meant marriage before sex, now tells us that “No one, without something short of an explosive or a Viking-raid style battering ram, can penetrate my front door.” Good to know she sticks to her principles. Read the details here.

Like a rock!: Funny...it works in the commercials!

Strike update: Well, I went down to Alberston’s yesterday and spent fifty or sixty bucks on stuff I don’t really need. I have to do my part in the strike, you know.

Anyway, it looks like the strikers are reverting to what strikers always revert to. They have not persuaded us that the stores’ demand that they pay five bucks a week for health insurance is akin to grinding them under the Dickensian heel of misery and poverty. And when you can’t persuade rationally, why, you just have to go in and violate someone’s rights to get attention! (Saw it on John & Ken’s new site.)

Fun with the UCC: A law student at my alma mater, who blogs at One L7, has a great question from my former sales professor, William Stallworth—who amazes all the students with his seeming to have memorized the Uniform Commercial Code. Here’s the question, since One L7 doesn’t seem to have permalinks:

UCC r2d 16 provides:

1. A person incurs only voidable contractual duties by entering into a transaction if the other party has reason to know that by reason of intoxication

a) he is unable to understand in a reasonable manner the nature and consequences of the the transaction, or

b) he is unable to act in a reasonable manner in relation to the transaction.

The question is; Does an already intoxicated individual have the ability to void a bar tab subsequently created to intoxication?

Professor Stallworth has asked that I think about this and bring it up again on Monday so I’m looking for some input. Any folks who have any useful interpretations send me an email (kyle@onel7.com).

Email me with your answers, too; I’d like to hear them.

Guest blogger: This week’s guest blogger is Dr. Matt Dunn. I first met Dr. Dunn during our Lincoln Fellowship at the Claremont Institute in 2002. He’s a dentist with a practice in Denver; he has a B.A. in government from Pomona College and his D.D.S. from Northwestern University. He writes a lot—he’s the managing editor of ColoradoSenate.com—and is extremely well versed in philosophy. He’s fond of H.L. Mencken, the founding fathers, and an occasional cigar. Please welcome Matt Dunn.

Fame!: Thanks to et cetera for the link.

The nature of law: My college politics professor, Dr. Mickey Craig, used to say that if you wanted to see what Hobbes’ idea of the state of nature looked like, you need only to look at an elementary school playground. There, the bullies beat up on the little kids; bigger bullies beat up on them; and so on. It is the bellum omnia contra omnes. Is it wrong for the bully to beat up the little kid, even when no teacher is around? Well, the kids pretty uniformly believe it is; certainly they feel wronged when beaten. This suggests, strongly to my mind, that the notion that it is wrong runs deeper than a faddish preoccupation; that the wrongness is, in fact, natural—arising from the fact that humans do not flourish when they are liable to be beaten up at any moment. No cultural indoctrination is necessary to teach kids that getting beaten up is bad; quite the opposite. Thus do we all learn natural justice on the playground.

Our founding fathers believed that government was created in order to stop people from beating each other up like this. James Madison wrote that in the state of nature, “the weaker individual is not secured against the violence of the stronger.” But the problem is, government itself can also be used to beat people up—in Madison’s words, “the stronger faction can readily unite and oppress the weaker.” That’s why, he continued, “you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The point of the Constitution, therefore, was to force people to deal with one another on terms of rationality, cooperation, and mutual agreement, rather than on the basis of force. But that meant limiting the government also, so that the government did not get used as a tool by bullies to beat up on the little kids. As Prof. Sunstein has written, the framers inserted into the Constitution several provisions “united by a common theme and focused on a single underlying evil: the distribution of resources or opportunities to one group rather than another solely on the ground that those favored have exercised the raw political power to obtain what they want.” Cass R. Sunstein, Naked Preferences And The Constitution, 84 Colum. L. Rev. 1689, 1689 (1984).

The problem with monopolies* is that they are one of the ways that bullies use the government to beat up on the little kids. They essentially forbid the little kids from engaging in, say, the trade of making and selling playing cards, and thereby create artificial scarcity so that when the bully makes and sells playing cards, he can reap all the financial gain for himself. Monopolies, therefore, betray the very purpose of creating government. It’s like if the teacher goes into the playground supposedly to protect the little kids—but then starts taking bribes from the bullies to look the other way. The whole point of a government is to ensure that differences, and competition, between parties are conducted reasonably, on the basis of agreement and cooperation, instead on the basis of mere assertions of force and raw political power. When a mere assertion of force calls itself a law, it is arbitrary, because it is an ipse dixit answer that says—I’m the law, because I’m bigger. Yet the reason we create the laws is to stop people from acting that way, and to make them give reasons for the things that they do—to prevent, in other words, raw assertions of political power from calling themselves “law.”

Yet sometimes monopolies really are unavoidable. Railroads were monopolies, for instance, because they exercised the power of eminent domain. The government allowed them to take people’s property for their own private benefit. Yet without eminent domain, it’s at least extremely difficult to imagine how a railroad could be laid out. So how do we use this power while preventing it from being taken over and exploited for the benefit of those who hold raw political power? Madison had an answer for that, too—an answer suggested to us by the very existence of government, which itself is a monopoly, on the use of force. That is, we must somehow require the use of such political power to benefit everyone, rather than the few who have the political power. That’s what the “public use” and “just compensation” clauses are designed to do. As Madison later wrote, when government gives land to people—say, a railroad—it should make “the grants…according to rules of impartiality, for a valuable consideration, and all lands being held equally by that tenure from the public, the vital principle of monopoly is lost. The benefit is not confined to one or a few, but is enjoyed by the whole or a majority of the Community.” Generally, railroads which exercised the power of eminent domain had their rates regulated by government commissions, to do ensure that, at least in some degree, the railroad was a “public use,” rather than a mere exertion of power.

Loan Association v. Topeka, 87 U.S. (20 Wall.) 655 (1874), reveals a similar situation. There, the government took property from some people and gave it to others—it used tax dollars, and invested that in a private railroad company. When this had occurred in the past, several courts—most notably the Pennsylvania Supreme Court—had said this was okay, because states could do absolutely anything they wanted to! But the U.S. Supreme Court disagreed. It held that tax monies had to be used for public benefits—again, the power to tax (the teacher, in my analogy) could not be used for the benefit of the railroad owners (the bullies) at the expense of the citizens (the little kids). There is no “unlimited power in the State legislature to tax the people,” the Court held; where a tax “no longer be justly claimed to have this public character, but [is] purely in aid of private or personal objects, the law authorizing it [is] beyond the legislative power, and was an unauthorized invasion of private right.”

It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers.

There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B.

Of all the powers conferred upon government that of taxation is most liable to abuse…. To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.

Nor is it taxation. A “tax,” says Webster’s Dictionary, “is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or state.” “Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes….” [T]here can be no lawful tax which is not laid for a public purpose.

Id. at 662-64. Note the Court’s distinction between legislation and a “decree under legislative forms”; a distinction which rests necessarily on a distinction between right and mere force; between a government which is doing what governments ought to do, and a government which has itself turned into a bully. This distinction is unavailable to the ipse dixit notion of justice embraced by positivism. It’s unfortunate that writers like Paul Kens have taken to describing the philosophy of Loan Ass’n and similar cases as “Jacksonian.” In fact, it traces its roots quite clearly to Jeffersonian, and Lockean, political philosophy, and not to the mere populism that Jackson connotes to me.

Well, under rational relationship scrutiny, of course, none of this matters. Only the most egregious examples of naked preferences are considered unconstitutional, and then only under the due process or takings clauses, and under the latter, only in extremely rare cases. Otherwise the most formulaic assertion of a benefit to the public is enough to insulate a use of government power from judicial scrutiny. Today, the bullies run the playground, and the teacher looks away, so long as there might be some rational relationship to some conceivably legitimate government purpose….

*-I speak here of actual monopolies, like that which gave rise to the Slaughter House Cases, and not of successful private companies like Microsoft, which are not monopolies at all.