Jan 272004

In America Chief Justice Marshall, following Blackstone and Coke, first breathed life into the corporation in 1819, writing in the Dartmouth College case, which is widely quoted in judicial opinions to this day: “a corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.” Marshall’s dictum appeals to leftist critics for two reasons. One is practical: if the law, or the State, creates the corporation, then it can also specify the conditions for its existence, regulating and limiting as it sees fit. Marshall actually held to the contrary in Dartmouth College, but the logic is ineluctable. Live by the sword, die by the sword. The other is mystical: it enables them to discuss the corporation as if it had a mind and heart of its own, independent, somehow, of the people in its employ. Invisible, intangible entities are more convenient targets for invective than human beings. Corporation critics, amusingly, often complain of the fictional legal personhood of corporations — cemented by the 1886 Santa Clara case — and simultaneously write of them as if they were animate.

Too many sympathizers with corporations too hastily adopt Marshall’s position. Eugene Volokh, for instance, remarks of the recent corporate free speech cases:

The same issue comes up as to corporations and unions, which get significant government benefits. When may the government say “In exchange for the benefits of the corporate form, or for the special legal powers that unions have, we will insist that you not spend money on election-related speech”? (Most corporations are state-chartered, so that benefit is actually provided by the state government, not the federal government; but I don’t think this matters, given the modern Congressional authority over interstate commerce, which would give Congress the power to preempt or modify state-granted charters.) That’s a really tough question — but the First Amendment text doesn’t answer this question any more than it answers the question “When may the government say ‘In exchange for a government paycheck, we will insist that you not reveal the tax return data that you’ll be asked to process’?”

What are these “significant government benefits” that Professor Volokh is talking about?

Classical corporate theory posits three answers: entity, perpetuity, and liability, and the first two aren’t very serious. Entity is the right of a corporation to give itself a single name in legal documents instead of listing all its shareholders. It is neither a privilege — since it’s as convenient for parties that want to sue the corporation as it is for the corporation itself — nor unique to corporations. Partnerships can easily declare themselves entities, and so can married couples. It’s a naming convention. Surely the theorists can do better.

Yes, corporations theoretically live forever — like vampires! — which means merely that they never have to renew their articles of incorporation. As any contract expert will tell you, it’s easy to make a partnership, club, or any voluntary association immortal in the same way, by changing the by-laws. Immortality also doesn’t avail you much if you go out of business, as most corporations do within a few years.

Limited tort liability is the heart of the matter. Corporations are liable for torts only to the extent of their capital: only the shareholders are liable, and only to the extent of their investment. Since officers have no special liability, unlike general partners in partnerships, this leads to the abuse known as the close or one-man corporation. I can incorporate my business, running it effectively as a sole proprietororship, and shield my assets from liability by deliberately undercapitalizing the corporate shell. If I commit a tort, the aggrieved party will find nothing to sue.

Corporation critics often propose to remedy this by removing the shareholder’s limited liability privilege, which misdiagnoses the problem. The beauty of corporate structure is that it permits people to invest in a business that they have no interest in managing. Nothing nefarious or undemocratic about that; if shareholders wanted to run the business, they’d get a job there instead of buying stock. But if Grandma buys $1000 worth of IBM, why should she be on the hook for her house, when she has no say in IBM’s daily operations? The real answer lies in vicarious liability, which descends in common law from respondeat superior, the doctrine that the master is responsible for the actions of the servant. Them as does (or hire them as does), pays. Unlimited tort liability for the people who actually direct the corporation; liability only to the extent of her investment for Grandma.

If we viewed corporations as what they are, voluntary associations, the speech question would collapse nicely. Corporate free speech would become, instead of a separate, messy legal question, a matter of the free speech of the people who run the corporation. The Nike case, for instance, would be regarded not as a matter of Nike’s free speech, but of Phil Knight’s. And one less invisible, intangible being would haunt the earth.

I owe a lot of this argument to Robert Hessen’s In Defense of the Corporation, the best, and a mercifully brief, book on the subject.

(Update: Alan Sullivan comments.)

Aug 232003

David Sucher, who runs the very interesting urban planning blog City Comforts, is asking again for “a principled, thoughtful conservative/libertarian critique of how to create the built environment,” and I figure as a sort of villain in the piece.

What makes me uneasy is that in actuality there really isn’t any principled, thoughtful Conservative/Libertarian (C/L) critique of how to create the built environment. In fact it was this discussion on God of the Machine which helped me give focus to City Comforts Blog. The discussion there ended on this note, with the comment directed to me:

“If the ‘problem’ is that you don’t care for the way cities and towns look now (under rigid zoning, I hasten to add), couldn’t it be easily rectified by simply appointing you land czar? Would that be any more unjust than allowing zoning boards to impose costs on people who get no say in the matter?”

I thought further conversation unproductive.

But that, unfortunately, is the typical C/L response: either denial or sneering and ending in “It’s my party…” There simply does not exist any intelligent or useful C/L commentary on land use governance. (Please, someone, prove me wrong!)

David’s acknowledgement that I helped give his blog focus (negatively perhaps, but I take it where I find it) is certainly more gracious than my remark. Actually we agree on most of the aesthetic questions — the bankruptcy of most modern architecture, the importance of promoting street life, parking as the tail that wags the dog. His constant criticism of “starchitecture” is well-taken. As Michael Blowhard reminds us in his discussion of Frank Lloyd Wright, nobody wants to live or work in Art. Art’s roof leaks. Art’s chairs tip. Art doesn’t have enough parking.

The dispute is over means, not ends. Private developers often erect hideous buildings, but for disaster on a grand scale nobody can touch the government. Think Pruitt-Igoe, or the housing project of your choice. Think the late World Trade Towers, unlamented by anyone who ever had to work there. David professes to admire Jane Jacobs; the great lesson of The Death and Life of Great American Cities is the vast superiority of bottom-up to top-down architecture. Cities, like markets, are more than the sum of their parts, and seem to show these ancillary benefits only when individual property owners are given latitude to operate. David is a real estate developer by trade, and his experience with architecture is far wider than mine, but I know New York City pretty well, and most of the development in its most livable and attractive sections, like the West Village, antedates central planning. New York tourists, once they’re done with the landmarks, head straight for the Village, or Chinatown, another planner’s nightmare. Attractive city neighborhoods can apparently spring up without any “planning” or “policy” whatsoever.

Is the culprit bad planning rather than planning itself? Certainly 20th-century urban planning, with its emphasis on segregating uses and choking off street life, has been very bad. Yet it is difficult to see how any planner, no matter how wise, could produce the endearingly crooked streets and chaotic mix of businesses and residences that characterize the West Village, or the North End of Boston, to take Jane Jacobs’ example.

David’s demand for a libertarian theory of “land use governance,” a polite term for zoning, is not entirely reasonable. It’s like asking a libertarian how he would run the Department of Agriculture or Education, to which the obvious reply is, he wouldn’t. He’d disband it. “Land-use governance” means the nosy neighbors convene and decide what I can build on my own property and to whom I can sell it. They impose costs on me at no cost to themselves. Zoning advocates like David ought to acknowledge the manifest injustice of such a policy.

A libertarian land use “policy,” if that is the term, might develop along coop/condo lines. Coop owners, like me, own shares in a building or group of building rather than individual units within it. I forfeit a certain amount of control over my premises in return for a lower price for the same amount of real estate. I do so voluntarily, and the rules are clear and laid out in advance. A coop agreement, unlike the zoning laws, is a deal. My coop consists of three buildings, and there’s no reason there couldn’t be larger coops of entire streets, or neighborhoods. Condominium agreements could burgeon in the same way.

This leaves the problem of burden-shifting. What happens if the guy next door decides to sell out to hog-processing plant? The short answer is, too bad. You’ve chosen to live somewhere he’s allowed to do that, and it’s his decision, not yours. The slightly longer answer is, if the hog-processing plant is damaging your property, by, say, belching toxic smoke into it, you do the American thing and sue. To the extent that the plant owner damages you — by tortiously interfering with your property, not by lowering the tone of the neighborhood — he pays. For this to work properly would require a major revision of liability law, which is a post for another day.

Jul 082003

Two of my favorite libertarian bloggers have squared off over the meaning of the Commerce Clause. In this corner, from the Cato Institute, Radley Balko:

Nearly every libertarian interpretation of the Constitution I’ve read says that the intent of the Commerce Clause was to facilitate commerce between the states, not to inhibit it. It was meant to set up a kind of “free trade zone” between the states. So if Mississippi, for example, wanted to tax every boat carrying cotton not grown in Mississippi traveling down the Mississippi River, Congress would have the authority to intervene. I’ve never read a libertarian interpretation of the Commerce Clause that says it should be interpreted to mean that Congress can tell businesses how they can or can’t solicit customers.

In fact, most libertarians agree that the only Supreme Court case to correctly interpret the Commerce Clause was the very first to come across its desk — Gibbons v. Ogden in 1824. There the Court struck down a New York law attempting to establish a monopoly on steamships traveling between New York and New Jersey. Chief Justice Marshall recognized that the Commerce Clause applies only to the trafficking of goods between two or more states, and also that Congresss had no power to regulate commerce within a state (he refused to allow Congress to enforce quarantine laws before or after a steamship docked within a particular state, for example).

And in this corner, late of Cato, now with Reason magazine, Julian “the Apostate” Sanchez:

Well, you know, I don’t much care about the “libertarian” or “non-libertarian” interpretation; I’m more curious about the correct interpretation. And if the “libertarian” interpretation insists that, contrary to appearances, the Commerce Clause does not empower the federal government to “regulate Commerce… among the several States,” then the “libertarian interpretation” is wrong.

Oh, I fully agree that the abuses Radley goes on to cite, wherein “commerce” is read to mean “manufacturing” or “anything that might affect commerce” or “anything Congress feels like passing a law about” are ultra vires. But that’s not what we’re talking about here, is it? This isn’t someone growing wheat on his own farm, or insisting on a 50 hour work week in a local factory. We’re talking about folks in one state calling up folks in another state to carry out a business transaction. If that’s not “commerce… among the several States” I don’t know what is.

The ostensible bone of contention here is “don’t-call list” anti-telemarketing laws, which Radley opposes and Julian doesn’t object to very vociferously, but the more important issue, as they both recognize, is the scope of the Commerce Clause. What we really have on display, however, is two conflicting theories of Constitutional interpretation.

Radley, as he acknowledges offhandedly, subscribes to original intent, appealing to “the intent” of the Commerce Clause to faciliate rather than inhibit commerce between the states. Julian is a textualist: he argues that the power “to regulate commerce among the several States” is, well, exactly that.

Now much as I would like to read the Constitution as debarring all Federal economic regulation whatsoever, I’m afraid Radley’s dog won’t hunt. Laws and constitutions are written by committees, and ascribing intent to groups is a dubious process indeed. If Jefferson, Madison and Hamilton quarreled over the meaning of a particular clause, as they often did, whose “intent” carries the day?

Original intent theory, if we assume that “intent” can be established at all, perversely privileges thought over deed. We are supposed to concern ourselves not with what the Constitution actually says, but with what the Founders thought it said. Even as a principle of literary interpretation, where we usually have only one author to concern ourselves with, this is unsustainable.

I of course agree with Radley and Julian that the Commerce Clause is a painfully slender reed to suspend a full-featured welfare state from, or, as Julian puts it, “that commerce means, as it’s been read to mean, ‘anything that seems like it might possibly marginally affect commerce if you squint real hard.'” Radley complains that “How can you say, then, that Congress doesn’t have the Constitutional authority to regulate the airlines, broadcast media, or any business, really, that has franchises in more than one state, or that does business with other businesses in more than one state, or that does anything at all that even remotely affects commerce in more than one state?” The answer is two-fold. First, there is a principled difference between regulating interstate commerce and regulating anything that might conceivably affect interstate commerce. The Supreme Court eventually agreed in Lopez that there are some interventions that even the Commerce Clause cannot justify, like federal laws against guns near school grounds. Second, some laws have to be fought on substantive rather than Constitutional grounds. As Eve Tushnet likes to say, Repeat after me: Not all bad laws are unconstitutional… not all bad laws are unconstitutional…

(Update: Jonathan Wilde comments.)

Jun 242003

I can’t hope to match the peerless coverage of the Bollinger cases by Team Volokh, but a few thoughts:

O’Connor’s majority opinion in Grutter admits that the Court is obligated to find, under Adarand Constructors, which subjects racial categories to strict scrutiny, a “compelling state interest” in affirmative action. It finds this interest in diversity. It nowhere scruples to tell us what diversity actually is. Thomas, less shy, defines “diversity,” tersely and accurately, as “classroom aesthetics.”

The majority opinion also states, “the Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected.” How frequently, do you suppose? The Court, alas, declines to provide statistics, but I’d wager the rent money that “frequently” is in the single digits for, say, the Law School in any given calendar year.

Sandra Day O’Connor may be the Lewis Powell of her generation, but Thomas, as Volokh points out, is living in a dream world when he declares in his dissent that “I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years.” The majority opinion reads, “The Court expects that, 25 years from now, the use of racial preferences will no longer be necessary.” Sure; just as rent-control in New York City was expected to be a temporary wartime measure. That war was World War II.

In a perfect world the University of Michigan would be able to admit anyone they pleased, corporations would be able to hire anyone they pleased, and there would be no “prohibited categories” of discrimination, or indeed, any anti-discrimination laws at all. So I can’t get too upset about affirmative action. The people who get really exercised about it tend to be old ACLU civil-rights lefties, like David Horowitz, or John Rosenberg, who runs the excellent anti-affirmative-action blog Discriminations, or my father. Old lefties retain a touching faith in the government’s ability to make a better society. They believe in integration and public education. They marched for civil rights in the South and sought to eliminate discrimination against blacks not just in law, by taking Jim Crow off the books, but in fact. They really believed in the government’s willingness and ability to wipe out racism, and they feel, with some justice, that they were sold a bill of goods. Communism made the first generation of neo-conservatives: affirmative action made the second generation.

May 192003

“Workshop” theories of art, which trace characteristics of art to external constraints, generally leave me cold. In most arts very little stands between conception and execution. You think it, and there it is. Architecture is the exception. (Also movies, but to an ever-lessening degree.) For most of human history engineering knowledge severely constrained what could be built. Before steel-beam construction anything taller than a couple hundred feet was basically impossible.

No longer, of course. Even Frank Lloyd Wright’s mile-high skyscraper was feasible in 1956, when he designed it, except for the elevators, and that problem has since been solved. Theoretically we can build just about whatever we want.

In the 20th century what constrains architecture is law. Zoning regulations are a relatively recent invention; only in 1926, with the disastrous Supreme Court decision of Euclid v. Ambler, was their constitutionality definitely settled. Every major city in America except Houston is now zoned. The stepped-back skyscraper of the early part of the century, of which the Empire State Building and the Chrysler Building are the classic examples, was largely a product of the 1916 New York zoning ordinance. The dreadful tract houses of the suburbs, too, are a legal matter; without the rigid regulations that segregate residential from commercial use the suburbs certainly would not have taken their current form.

The Mies-Corbu school would never have seen the light of day without government assistance. Corbusier had built nothing but a few houses for his boho friends and a vacation place for his mother when in 1927 Mies brought him in to help out Weissenhof Werkbund project, an exhibition of worker housing sponsored by the German Social Democratic government. It wasn’t until decades later that private parties began to pay serious cash for the stuff.

On the other side of the spectrum things are much the same. Christopher Alexander, ideologically as far from Mies and Corbu as you can go without sailing off the edge of the earth, has had his largest commissions from the government of Mexico, and a public university, the University of Oregon. It is true that for the most part only governments are in a position to give out such commissions. This is because governments have spent a good part of the century arrogating to themselves the privilege of regulating land use. Do the architects complain? On the contrary; they demand that it be done in the interest of their pet style.

Zoning laws themselves are not ex nihilo: they come from ideas, and it’s perfectly valid to discuss those ideas. But most builders work under tight legal constraints, and it is a mistake to treat their products as if they sprang more or less directly from their heads.

King George I remarked of the Old Pretender that “He and I are in perfect agreement. We both believe we should be King of England.” So with architects.

Apr 212003

A larval town, Arcata, CA, pop. 16,000, puffs itself up like a banded newt, seeking not a mate but media attention, and lo! it succeeds. Arcata already has a foreign policy, like all self-respecting municipalities these days, including my dear old Manhattan, bless its grimy heart. Arcata is against the war. It is against global warming. And now it is against the Patriot Act.

When Arcata is against stuff it passes resolutions, and so Arcata “has become the first in the nation to pass an ordinance that outlaws voluntary compliance with the Patriot Act.” Outlaws voluntary compliance, mind you. “I call this a nonviolent, preemptive attack,” says David Meserve, the Arcata freshman City Council member and latter-day Jefferson Davis who drafted the ordinance, bravely sounding the call to nonviolent arms.

Arcata objects, in particular, to noxious provisions of the Patriot Act that allow the FBI to commandeer information from libraries and bookstores about the reading habits of their patrons. Earth to Meserve: law requires force, and in a showdown between the United States Army and the Arcata Municipal Police and Affiliated Busybodies Association, I know where I’m putting my money. You want to condemn the Patriot Act, fine; I’ll be there right beside you. You want to try to force people to refuse to comply with the Feds, on pain of…on pain of…on pain of, let’s see, a serious talking-to and being sent to bed without supper? Think it over, OK? I would call the whole affair sophomoric, but for the fact that Meserve is not yet a sophomore.

(Update: Floyd McWilliams has another little California town that could, and a bonus fun fact about Arcata and the VodkaPundit, Stephen Green. Sorry no, you’ll just have to follow the link.)

(Another: Over at the Volokh Conspiracy, Juan Non-Volokh notes that in Printz v. United States, the Supreme Court ruled that the state and local officials could not be compelled to enforce a federal regulatory program — in that case, the Brady Act. So Meserve may actually have a legal case after all.)

Mar 122003

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What are these unenumerated rights?

Many theorists, of whom Robert “Inkblot” Bork is the most notorious, have denied that unenumerated rights exist at all. The dominant school of legal philosophy, legal positivism, which holds that the only source of rights is the law itself, obliges its adherents to take this position. Unenumerated rights, implying an extralegal standard, are for the positivist a contradiction in terms. Frank positivists, like Bork, say that the Ninth Amendment is meaningless; less frank positivists, like Justice Robert Jackson, simply profess not to understand it. All positivists devoutly hope that if they ignore the Ninth Amendment it will go away. Historically this strategy proved highly effective. Before Justice Goldberg’s famous concurrence in Griswold v. Connecticut in 1965, the Ninth Amendment had been cited by the Supreme Court fewer than a dozen times.

Reciprocists, in a variation on the theme, claim that the Ninth Amendment is a mirror-image of the Tenth, which grants all unenumerated powers to the States or the people. The Ninth grants rights, the Tenth restricts powers, and rights begin where powers end. They’re two ways of saying the same thing. Reciprocism has been surprisingly popular, considering its insuperable problems. There are all sorts of enumerated rights, like the right to be free of cruel and unusual punishment and excessive fines, or the right to a trial by jury, that aren’t implied by the absence of a federal power. The Federalists made this same reciprocal argument against a Bill of Rights at the Convention, and they lost. “It is odd indeed,” as Randy Barnett* says, “to insist that the best interpretation of the Bill of Rights is based on the theory of its most vociferous opponents.”

The text doesn’t support reciprocism either. State governments are enjoined from violating whatever rights the Ninth may grant, by the doctrine of incorporation, which reads the Fourteenth Amendment as applying the Bill of Rights to the states. Incorporation clearly must include the Ninth Amendment; otherwise the rights it grants would be “disparaged” by comparison with the enumerated rights. So the Ninth enjoins state and federal governments equally, while the Tenth grants powers to state governments that the federal government does not possess. These are distinct propositions.

(I have never understood the necessity for incorporation doctrine. Every article of the Bill of Rights except the first is phrased in the passive voice: “the right to bear arms shall not be infringed,” “excessive fines shall not be imposed,” etc. These rules seem to me to enjoin the state governments equally with the federal, ancient case law to the contrary notwithstanding. But until I persuade the Supreme Court to go along with this view incorporation will have to do.)

There are other variations. Raoul Berger argues that even if Ninth Amendment rights exist, they can’t be enforced by the federal government, which is a pretty undistinguished argument from such a distinguished legal scholar. If they aren’t enforceable, how they can be rights at all? If that’s not “disparagement,” relative to enumerated rights, I don’t know what is.

All of these theories effectively read the Ninth Amendment out of the Constitution, thus violating the first principle of Constitutional interpretation: every clause has an effect. This has been reaffirmed countless times and was first stated by Chief Justice Marshall in Marbury v. Madison: “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.”

There must be some unenumerated rights that are not implied by the enumerated restraints on government power. A few theorists acknowledge this; but as their next line of defense propose to read these rights as narrowly as possible. Calvin Massey, for example, proposes that they be limited to “those having a clear textual foundation in state sources in existence at the time of the Constitution’s adoption.” Of all the clauses in the Constitution the Ninth Amendment, which is deliberately open-ended, lends itself least readily to this sort of historical analysis. The Founders could have easily enumerated these rights from the states if that was what they had in mind.

I see only one way to construe the Ninth Amendment, and it requires, as one might expect, the Founders steeped as they were in Blackstone and Locke, natural rights theory. Now I’m as leery of this venture as the next blogger without a law degree, maybe more so. Generally I’m a pretty strict textualist in matters of Constitutional interpretation, but the Ninth Amendment commands us to look outside the text. This doesn’t mean judges can construct new rights willy-nilly. They must be constructed by analogy with, and under the same philosophy that informs, the enumerated rights. All enumerated rights involve either spheres of action in which the government cannot interfere (e.g., freedom of speech, press, and assembly) or procedural restraints when it can (e.g., trial by jury, unreasonable search). Unenumerated rights must be of the same nature. So there can be no Ninth Amendment right to, say, welfare, or, as Ronald Dworkin has proposed, to “equal dignity.”

John Hart Ely, who himself takes refuge in Ninth Amendment reciprocism, calls this “scary,” and I agree with him. But Constitutional interpretation is a scary business, and in any case, the judiciary constructs rights all the time. The Supreme Court has decreed, besides the famed right to privacy, a right to travel, a right to marry, a right to keep one’s citizenship, and many others, mostly under cover of murky and abstruse doctrines like “equal protection” and “substantive due process.” I wholeheartedly support such decisions as Loving v. Virginia, which struck down anti-miscegenation laws, and Griswold, which struck down restrictions on the sale of birth control. I merely object to the tortured reasoning to which the majority subscribed in these and related cases. Judges make moral and philosophical judgments, and the Ninth Amendment authorizes them to do so, in plain sight.

*Most of the arguments in this article, good and bad alike, come from one or another of the contributors to Barnett’s excellent anthology of essays on the Ninth Amendment.

Mar 062003

There has been considerable discussion of the ethics of police torture in the blogosphere without a single invocation of the seminal American text on the subject, a work with which all of these distinguished ethicists are doubtless familiar. I refer, of course, to Dirty Harry.

That famous torture scene on the football field has its troubling aspects. Callahan makes a point of ordering his partner, “Too Much Linguine” DiGiorgio, out of the stadium: “Go out and get some air, Fatso.” He knows he’s about to cross the line. He doesn’t want to make DiGiorgio complicit, but he doesn’t want witnesses either.

It’s also no certainty that the man they’re chasing is even the killer, although it’s highly probable. Nobody has had a good enough look at him to provide a physical description, and the only positive ID they have is from the ER doctor who treated his stab wound. It’s conceivable that someone else could show up at a big city hospital with the same sort of wound at the same time. But this is more than good enough for Callahan.

Callahan is also quite sure the girl, whose life he’s supposed to be interested in saving, is already dead. He tells the Mayor and the Police Chief so in an earlier scene, and Scorpio confirms his hunch by telling him in the bagman scene in the park that “I’ve changed my mind. I’m going to let her die. I just wanted you to know that.” And in fact the girl is dead. Callahan tortures Scorpio because he enjoys torturing criminals. In the famous bank robbery scene — “six shots, or only five?” — he fires the empty at the robber’s head only partly because the robber asks him to (“I gots to know”). Mostly he does it for jollies. If you doubt me take a good look at the grin on his face when the gun clicks.

Callahan does manage to discover the murder weapon (in an illegal search) and the location of the dead girl, so in a certain sense the torture is effective. In the long run, however, it proves disastrous. Callahan saunters into the District Attorney’s office the next morning expecting a hero’s welcome; instead he is informed that Scorpio isn’t going to prosecuted.

DA: You’re lucky I’m not indicting you for assault with intent to commit murder.
Callahan (doing classic Eastwood slow burn): What?!
DA: Where the hell does it say you’ve got a right to kick down doors, torture suspects, deny medical attention and legal counsel. Where have you been? Does Escobedo ring a bell? Miranda? I mean, you must have heard of the Fourth Amendment. What I’m saying is, that man had rights.
Callahan: Well, I’m all broken up about that man’s rights.
DA: You should be. I’ve got news for you, Callahan. As soon as he’s well enough to leave the hospital, he walks.
Callahan: What are you talking about?
DA: He’s free.
Callahan: You mean you’re letting him go?
DA: We have to, we can’t try him.
Callahan: And why is that?
DA: Because I’m not wasting a half a million dollars of the taxpayer’s money on a trial we can’t possibly win. The problem is, we don’t have any evidence.
Callahan: Evidence? What the hell do you call that? (He gestures toward Scorpio’s weapon on a side table.)
DA: I call it nothing, zero.
Callahan: Are you trying to tell me that Ballistics can’t match the bullet up to this rifle?
DA: It doesn’t matter what Ballistics can do. This rifle might make a nice souvenir. But it’s inadmissible as evidence.
Callahan: And who says that?
DA: It’s the law.
Callahan: Well then, the law is crazy.

Also in attendance is a Judge Bannerman, a professor of constitutional law — at Berkeley, naturally, which provokes, in me at least, some residual sympathy for Callahan. Bannerman summarizes the matter dryly:

The search of the suspect’s quarters was illegal. Evidence obtained thereby, such as that hunting rifle, for instance, is inadmissible in court. You should have gotten a search warrant. I’m sorry, but it’s that simple…The court would have to recognize the police officer’s legitimate concern for the girl’s life, but there is no way they can possibly condone police torture. All evidence concerning the girl — the suspect’s confession, all physical evidence — would have to be excluded…

Now, the suspect’s rights were violated, under the Fourth and Fifth and probably the Sixth and Fourteenth Amendments. Without the evidence of the gun and the girl, I couldn’t convict him of spitting on the sidewalk.

So is Callahan justified in torturing Scorpio? Legally, no way. He scotches a case that the State had a good chance of making. Morally, unclear. Part of his motive is to try to save the girl, unlikely as that is, but part of it is sadism. The movie doesn’t approve torture by any means, despite its reputation. Eastwood himself clearly wanted a chance to clean up Callahan’s act: the first sequel, Magnum Force, casts police vigilantes as the villains, against whom Callahan stands for law, order, and proper police procedure. (It is unsatisfactory for this very reason, among others.) If arch-badass Clint Eastwood is queasy about police torture, I’m not surprised that mild-mannered law professor Eugene Volokh is too.

(Update: Arthur Silber has some well-considered thoughts — on torture, not Dirty Harry.)

Feb 092003

Justice Holmes, beloved of the left, beloved of the right (law-and-economics guru Richard Posner has edited the latest collection of his writing). It must be his looks more than anything: the height (6’3″), the big bristly white mustache, the Brahmin carriage, the steely gaze; he looks the very model of the modern Supreme Court Justice, at least as it must have been when Teddy Roosevelt appointed him in 1902. The name helps too: Oliver Wendell Holmes Jr. Cognominal overload, but fun to say.

What it can’t be is his jurisprudence. The first thing to understand about Holmes is that he was a radical moral skeptic. He was seriously wounded three times in the Civil War, shot through the heart at Antietam, and the experience hardened his conviction that human life was insignificant and reason impotent. What mattered was duty.

I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has little notion, under tactics of which he does not see the use.

Ugh. This is from a speech, made Memorial Day at Harvard in 1895, that induced Roosevelt to nominate him to the Supreme Court.

“I hate facts,” Holmes frequently remarked; “the chief end of man is to form general propositions.” He was always careful to add that no general proposition is worth a damn. Concrete propositions are worthless, abstract propositions are worthless — not much ground left to decide cases on, is there?

His jurisprudence accords with his table talk. This is most readily observed in his famous 14th Amendment decisions. The 14th Amendment states, among other things, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This leaves the judge to decide what “privileges and immunities,” “due process of law,” and “equal protection of the laws” are. It’s tough to do this without making a moral judgment somewhere along the line, which leaves a skeptic like Holmes in some difficulties, as we shall see.

Holmes’s first, and most famous, 14th Amendment decision was Lochner v. New York, in 1905. In Lochner the majority held that a New York state law prohibiting bakers from working more than 60 hours a week violated the 14th Amendment. Holmes wrote a magisterial dissent, declaring that “the 14th Amendment of the Constitution does not enact Mr. Herbert Spencer’s Social Statics [i.e., laissez-faire capitalism].”

Except nobody thought the 14th Amendment enacted laissez-faire. Everyone agreed that the States had the right to exercise the police power to protect people’s health and safety. Chief Justice Peckham, writing for the majority, argued, reasonably, that restricting the hours of bakers, who didn’t work in notably dangerous conditions, bears no reasonable relationship to the people’s health and safety, and that one of a citizen’s privileges and immunities is to contract his labor freely. Holmes’s famous aphorism doesn’t bear on the case in the slightest. (Although I can find no contemporary testimony on this subject, Holmes’ fellow justices must have found his writing style, in its grand manner, its haughty demolition of straw men, exceptionally irritating. I know I would.)

This is the sentence that should be quoted from Holmes’s Lochner dissent, but is not: “General propositions do not decide concrete cases.” OK. Then what does exactly? “The decision will depend on a judgment or intuition more subtle than any articulate major premise.” Intuition. This is what remains after we abandon concrete and abstract propositions alike.

This opinion is one of the two linchpins of Holmes’s reputation on the left. The other is his dissent in Abrams v. United States in 1919. In Abrams five Russian-born anarchists who printed and distributed a pamphlet calling President Wilson a “dog” and exhorting the workers of the world to unite were convicted under the Espionage Act of 1917, which prohibited “disloyal, scurrilous and abusive language about the form of Government of the United States;” language “intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute”; and language “intended to incite, provoke and encourage resistance to the United States in said war [WWI].” A noxious law, upheld by the majority, and Holmes, along with Brandeis, properly dissented. Here is his reasoning:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution.

Cold comfort for the civil libertarian. Free speech, according to Holmes, is good because the best “test of truth” — a word that, given his philosophy, he is not strictly entitled to — “is the power of the thought to get itself accepted in the competition of the market.” That millions of American adults, having profited from two centuries of free speech, continue to believe in astrology, the healing power of crystals, and buying real estate with no money down might seem to put this theory in some doubt. Fortunately it is only the theory of Justice Holmes. The theory of our Constitution is that suppressing speech is itself tyrannical and the shortest route to further tyranny.

Holmes states elsewhere, in Gitlow v. United States (1925), why free speech, as opposed to freedom of contract, is protected under the 14th Amendment.

The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word “liberty” as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.

Speech is protected because it’s part of liberty, and other liberties aren’t because, well, they aren’t. As a legal argument this leaves something to be desired. Perhaps the moral skeptic is making moral judgments after all.

Buck v. Bell confirms one’s suspicions. Under a 1924 statute enabling involuntary surgical sterilization “for the protection and health of the state” the State of Virginia sterilized Carrie Buck, a supposed mental defective (who turned out not to be after all), without her knowledge. When she found out later she couldn’t get pregnant, she brought suit on 14th Amendment grounds and lost, 8-1, with only Justice Butler dissenting. Holmes, personally an enthusiastic eugenicist, wrote for the court:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…Three generations of imbeciles are enough.

Plainly Holmes believes that the 14th Amendment does not apply to state eugenics because Holmes believes in state eugenics. One need not belong to the third generation of imbeciles to differ. More seriously, if “the public welfare may call upon the best citizens for their lives,” then why does Holmes maintain that the 14th Amendment protects speech, or, indeed, any rights whatsoever?

Speech but not contract. Speech but not the reproductive organs. “All my life,” Holmes said, “I have sneered at the natural rights of man.”

(The son is lionized, the father is neglected. Oliver Wendell Holmes Sr. was a physician, poet and essayist, professor of anatomy and physiology at Harvard Medical School, a pioneer of the bacterial theory of disease, author of the still-entertaining miscellany The Autocrat of the Breakfast Table and the greatest poem ever written about engineering, “The Wonderful One-Hoss Shay,” in which more wisdom can be found than in his son’s complete works.)

(Update: Jim Ryan thinks it’s possible to abandon rule-based reasoning without becoming an intuitionist, which he agrees is just another name for never having to give reasons, and argues for this here. I answer him here.)

(Another: The Man Without Qualities comments. He persuasively reads “The One Hoss-Shay” as being about the collapse of American Protestantism. And so it is, at the level of the tenor. At the level of the vehicle, however — the literal vehicle in this case — it’s about engineering. But this is yet another subject I can’t cover in a parenthesis. Walter Olson also comments.)

(Correction: Damien Sinnott kindly pointed out that Buck v. Bell was 8-1, not unanimous, and this has been corrected in the text.)

Jan 162003

Juan Non-Volokh writes:

Before the D.C. Circuit, occasional [Volokh] Conspiracy participant Erik Jaffe submitted an amicus brief on behalf of the Eagle Forum, pointing out that, read literally, the copyright clause does grants Congress the power “to promote the progress of Science and useful Arts,” and then proceeds to specify the means through which that power can be exercised (securing exclusive rights for limited times, etc.). The preamble does not limit the power, it is the power. Therefore, any grant of a copyright which does not promote progress is beyond the explicit grant of power. This argument is not particularly complicated or elegant, but it was enough to convince Judges Sentelle and Tatel on the D.C. Circuit and, in my mind, would have had the best chance of reaching some of the conservative justices on the High Court. Yet for whatever reason, the petitioners never adopted it below, and by the time they reached the High Court, it was too late to do anything about it.

The Copyright Clause is nearly identical, in its structure, to the Second Amendment. One refers to a power, the other to a right, but in both cases the first clause states the purpose, the second the means. So if one accepts this argument in Eldred v. Ashcroft, wouldn’t it follow that the right of the people to keep and bear arms extends only so far as is necessary to maintain “a well regulated Militia”? Yet Eugene Volokh argues elsewhere (I’m quite sure, although I can’t find a decent reference) that the first clause of the Second Amendment does not constrain the Second in this fashion.

Not that Volokhs and non-Volokhs are obliged to agree, of course.