Notes From Babel

Archive for June 2010

Constitutional Rights Are Not Subject to “Contemporary Significance”

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Thomas Sowell is absolutely correct:

There is no reason why judges should “consider the basic values that underlie a constitutional provision and their contemporary significance,” as Justice Stephen Breyer said in his dissent against the Supreme Court’s gun control decision.

Certain rights are enshrined in the Constitution for the simple reason that they ought not be hagridden by the fluid “contemporary” value society happens to ascribe to them.  The right to bear arms is the ultimate example—it is a right that must be guaranteed through the life of the republic such that it may be exercised but once at the end of it.

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Written by Tim Kowal

June 30, 2010 at 11:46 pm


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From the Corner:

In the video below, Coburn’s hypothetical is basic enough. If Congress passed a law mandating that Americans eat their vegetables, is that covered under the Commerce Clause? Kagan’s answer, or lack thereof, is telling:

Such a law would not merely be “dumb,” as Kagan says. It would be dumb and totalitarian, and its dumbness would not mitigate its totalitarianism. As someone who has watched nigh every minute of the hearings, remaining mum on whether Congress has the power to tell Americans what to eat every day marks the first time Kagan has slipped and revealed something of her judicial substance will give all conservatives — and most average Americans — great cause for concern.

The shame is that Coburn, after asking this great question, lets her off the hook. This issue must be revisited, and with gusto.

Why didn’t Coburn let Kagan flounder about for a while longer?  In a confirmation hearing such as this one, awkward pregnant pauses are likely to be the only telling responses the inquisitors are likely to get.  The problem with senators is that they so relish the sound of their own voices that any such pauses are instantly drowned out by more senator noise.  The image of Lennie cuddling the puppy to death comes to mind.

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Written by Tim Kowal

June 30, 2010 at 11:39 pm

Christian Legal Society v. Martinez

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I have not yet read the decision, but I wanted to relay the key portions of John Eastman’s and Erwin Chemerinsky’s contrasting positions on the decision:

John Eastman:

I think this is a very unfortunate decision.  I actually think it’s perfectly appropriate if a Jewish student group wants to limit its membership to people that share that faith.  Or if a gay and lesbian group wants to limit its membership to people that share that orientation or advocate for that cause.  And similarly that the Christian Legal Society group wants to limit its membership to those that share the Christian faith.  That’s the whole point of diversity in our student organizations, is that you allow people to join the club that is tied to their religious beliefs or their political views or what have you.  Hasting’s policy is saying that everyone has got to be open to everything means that differentiation among the groups will not be permissible other than just by chance. I think that’s unfortunate. I think it undermines the kind of diversity of ideas and opinions that we want to foster with our school groups.

Was it unconstitutional?  The Court has now said no, by a very narrow five-to-four vote, with a sliver of hope for Christian Legal Society yet if there’s a way they can unravel themselves from that stipulation, and say that Hastings was applying this selectively to their group because of their religious views, then there might be an opportunity for them to stay on campus.  Otherwise, they’re going to have to go off campus, underground, not have access to the billboards, and the email system of notification of their members of the meetings, the normal things you expect a student group to be able to do.  I think our law schools, our public institutions will be worse for it.

Erwin Chemerinsky:

I want to also strongly disagree with John here.  I’m the dean of a public university law school, and I strongly believe that all officially recognized student groups should be available to all students.  If a group wants to have an exclusive membership, let it do so off campus.  But it shouldn’t be getting public or student activity money, it shouldn’t be using facilities.  Now, in the rare case where there might be a takeover, where it might be that the Jewish students want to take over the Christian Legal Society, or the males want to take over the women’s law society, Justice Kennedy said, let’s deal with that reality when it happens, because it never does.  That’s really what he’s saying.  But I think it’s so important here, that schools be able to include all students in all student groups.

As you might expect from me, an Eastman protege, Eastman has the better argument here.  The First Amendment does not require public schools to push “neutrality,” if ever there could be such a thing.  Indeed, it would appear that the “all-comers” policy at schools like Hastings is overtly secular-friendly, allowing groups that have nothing to do with established religion to operate freely, while severely hamstringing groups like the Christian Legal Society.  Want to start a criminal justice society or a legal fraternity?  No problem.  Want to start a club oriented to members or sympathizers of a religious or ethnic group?  Better look to a private institution.

There is an odd phenomenon that goes on in public education.  The Court has become convinced that the government is so essential to public education that it must establish an entirely separate doctrine of freedom of speech, and now freedom of religion and freedom of association, to apply in our schools and universities.  Our Founders did not intend this.  The federal government, for one thing, was never meant to meddle in state educational institutions.  And allowing students to do what they will with their time and energies does not offend the establishment clause.  Even if these students use the school’s email system and facilities, as a matter of common sense, this does not rise to the level of a “law respecting an establishment of religion.”

As a nation, we’ve gotten much too worked up over Jefferson’s “wall of separation” metaphor.  We ought to stick with what the First Amendment actually says.  If we do, we’d find that it does not go the first step toward supporting the Court’s opinion in CLS v. Martinez.

(On the other hand, Eugene Volokh’s brief comment on the case is worth reading here.)

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Written by Tim Kowal

June 30, 2010 at 12:54 am

Formal Definitions Notwithstanding, I Hate the Word “Notwithstanding”

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Try as I might, I cannot make the word “notwithstanding” intuitive.  For one thing, I can’t get past the simple fact the word is really three words.  This means that when you read it aloud in your head, it has an utterly different meaning than its dictionary definition (“in spite of; without being opposed or prevented by”).  For example, section 415.21(a) of the California Code of Civil Procedure provides:

Notwithstanding any other provision of law, any person shall be granted access to a gated community for a reasonable period of time for the purpose of performing lawful service of process or service of a subpoena . . . .

Does this mean that “any other provision of law” does “not withstand” the rule that follows?  Or that the rule that follows does “not withstand” “any other provision of law,” such that it another provision of law is on point, it controls under the circumstances?  Intuitively, it would be the latter.  Which means that the correct interpretation of the rule—that “any person shall be granted access to a gated community…” no matter what “any other provision of law says”—is the exact opposite of what you’d think by reading the damn statute.

“Notwithstanding” is a terrible, awful, despicable word.

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Written by Tim Kowal

June 30, 2010 at 12:06 am

Posted in Language

“Brothers Under the Skin”: Conservatism and Libertarianism

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Sandefur is right:  conservatives and libertarians are not “brothers under the skin” who occasionally tussle over trifles.  Their respective positions on topics like the propriety of restrictions on certain sexual activity, as in Lawrence v. Texas, indicate a major rather than a minor break in their ideologies. This is not to say, however, that moral regulation is somehow the sine qua non of conservatism.  I submit that most conservatives would cringe at the idea of defending such laws, promulgated by cretinous state officials possessed of some burning obligation to ensure that all romantic congress in the jurisdiction conform to some established “custom and tradition.”  I can only imagine the glee that libertarians must feel at prevailing upon some poor lunkhead to defend a law like the one in Lawrence, and watching as he gurgles out a string of unintelligibilities until he is restored to his senses.  The correct response, as I believe Justice Scalia has given more than once, is that the mere fact that a law is stupid is not enough to make it unconstitutional.  (Incidentally, I believe Sandefur’s Objectivist brand of libertarianism takes just the opposite position.)

While I have no doubt that Sandefur accurately cites Russell Kirk in describing conservatism as “adher[ing] to custom, convention, and continuity,” this description is misleading if it is meant to encapsulate conservative jurisprudence—i.e., the way conservatives think about the law.  Thus, I think Sandefur overreaches in his description of conservatism’s goal in adhering to custom and convention, etc. in its approach to the application of law.

The ideology of conservatism as a whole is, indeed, profoundly different from libertarianism.  Conservative jurisprudence, however, shares more similarities with libertarian jurisprudence than one might expect by looking at the respective ideology as a whole.

Both ideologies are committed to the rule of law, and thus would decline to thrust any cultural agenda through an appointed branch of government.  Thus, with respect to their approach to the courts, libertarians and conservatives can still be “brothers under the skin” even as to cases like Lawrence v. Texas.  The dispute among conservatives and libertarians over that case (striking down a Texas law outlawing homosexual sodomy) is not over whether the Court ought to impose its preferences over the consummated will of the people, but whether that particular preference of the people could ever be consummated in the law in the first event.

In other words, the debate between conservatives and libertarians here is over political theory, not jurisprudence.  Thus, it is unfair and incorrect to suggest that conservatives would insist on effectuating their entire worldview through the legal system.  Just as unfair and incorrect, in fact, as it would be to suggest libertarians would do this.

This, at least, means I will enjoy discussing political and legal theory with libertarians infinitely more than with liberals, who tend to insist on mincing every such discussion into sodding pleas for equality and social justice.

UPDATE: If it’s embarrassing for conservatives to attack Lawrence v. Texas, it is probably similarly embarrassing for libertarians to attack Shelley v. Kraemer.

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Producers vs. Parasites

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I’ll grant that the “producer or parasite” distinction paints with a pretty broad brush.  There are certainly some interesting discussions we can have about what it means to be a “producer,” and perhaps we shouldn’t be so quick to categorize.  I often ponder exactly what my contribution is to society as a lawyer (which reminds me of something I wrote on that subject a while back that I might try to revise and post here). 

Jonathan Chait, on the other hand, complains that the “producer or parasite” slogan is repackaged white supremacy.  I suppose one way to attack a broad brush is to use an even broader, more ridiculous brush.

Written by Tim Kowal

June 23, 2010 at 6:46 pm


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I’ll go on record as saying I’m very excited about the new Christopher Nolan movie, Inception. Even though DiCaprio kinda gives me the willies. I wonder if it will do as good a job depicting the subconscious as one of my favorites, Eternal Sunshine of the Spotless Mind.

Written by Tim Kowal

June 22, 2010 at 8:21 pm

Posted in Uncategorized