The Volokh Conspiracy

In the Independent Review, by attorney Jacob Huebert.

The review concludes:

Rehabilitating Lochner does what it sets out to do very well. It places Lochner in its historical context, telling us where it came from, what it actually did, who attacked it, and what those people believed. Though published by an academic press, the book is readable and should be accessible for any intelligent lay reader. At the same time, it should be informative and provocative to legal scholars. I highly recommend it to anyone interested in the topic.

Several readers forwarded to me a link to a recent article in Democracy by Professor Jedediah Purdy, with requests to comment on it.

The basic thrust of the piece is to argue that the Roberts Court has become “the judicial voice of the idea that nearly everything works best on market logic, that economic models of behavior capture most of what matters, and political, civic, and moral distinctions mostly amount to obscurantism and special pleading.”

It’s a well-written piece, and provides the best concise account of liberal concerns about the Roberts Court’s trajectory as I’ve seen. So go ahead and read it, and then come back here for my comments.

Back already? Okay, a few, non-comprehensive comments. First, Purdy inevitably compares the Robert Court’s jurisprudence to “Lochner“; inevitably because, as I’ve noted before, modern liberals for decades have habitually (and to my mind, tendentiously) analogized any attempt by the courts to in any way limit legislative regulatory authority to Lochner. To his credit, Purdy makes some effort to acknowledge revisionist scholarship about Lochner, but ultimately repeats various myths, including the myth that the Court defended “laissez-faire” and “unfettered industrial capitalism.” For a dissection of this myth, see chapters 1 and 3 of Rehabilitating Lochner. In short, not even the most radical free marketeers on the Court, Brewer and Peckham, defended anything remotely approaching the laissez-faire jurisprudence advocated by the likes of treatise writer Christopher Tiedeman. I could quibble about some other historical inaccuracies, but let’s move on.

Second, Purdy attributes the Court’s controversial Citizens United and Sorrell opinions to a version of economic libertarianism holding that (1) “the distinction between politics and markets, or principles and interests, is spurious”; (2) there is no publicly accepted measure of value except willingness to pay; and (3) therefore, “elections and other institutions should come to resemble markets as much as possible.”

I disagree. The purpose of the Court’s First Amendment jurisprudence is not to prevent the redistribution of economic power form rich to poor, as Purdy would have it. Rather, the point is to ensure that the government can’t restrict the free flow of information because that is how governments abuse their authority in favor of those already in power and their special interest cronies.

It’s one thing to allow the government to regulate the economic activity of IBM, or AFSCME. It’s another for the government that runs a massive special interest state to either decide who gets to speak (e.g., academics, newspaper editors, bloggers, “public interest groups” [update: and other members of the "cognitive elite," whose average views diverge dramatically from public median]) and who does not (for-profit corporations and unions [update: or just ordinary citizens who band together via a PAC]), or to decide what the content of one’s speech will be (see Boy Scouts of America v. Dale). So there is a libertarian rationale for the Court’s jurisprudence, but it’s not a narrowly economic rationale, much less a rationale favoring a particular distribution of wealth.

Finally, and relatedly, Purdy’s objection to the Roberts Courts’ First Amendment jurisprudence seems to be that it inhibits the ability of the democratic populace to redistribute wealth and power more equitably, and the Court may do so even more in the future if the Court limits the scope of Congress’s Commerce power in the Obamacare case. The odds, however, are very much against the Roberts Court putting any significant limitations on government power. Even during the so-called Lochner era, when there was much broader intellectual and popular support for limited government, the Supreme Court’s occasional rulings invalidating legislation were generally a mere sideshow to an ever-growing regulatory state.

Nevertheless, Purdy does illustrate for the reader the traditional Progressive/liberal mindset favoring increased government regulation because such regulation will result in more democratic outcomes, which in turn means more downward redistribution. I didn’t see, however, any defense of the notion that republican democracy inherently, or even typically, works to the advantage of the downtrodden at the expense of the powerful. Todd and Ilya could speak to this better than I, but modern political science and economic literature raise grave doubts about this assumption. Among many other problems, the wealthy, well-educated and well-connected have huge advantages in the political process.

UPDATE: On this general topic, it’s well worth reading John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 Calif. L. Rev. 485 (2002). Although he is talking about the Rehnquist Court, it applied just as well today:

The Rehnquist Court’s jurisprudence reflects a more skeptical view of centralized democracy in an era in which there is more elite skepticism about the prospects of nationally mandated social reform than existed in the eras of the New Deal and the Great Society. Modern political science has suggested that mass national democracy often produces legislation Continue reading ‘Jedediah Purdy on the Roberts Court’s Revival of “Lochner”’ »

It’s fascinating to witness the extent to which strong support for Israel has become a litmus test for conservative voters. For much of Israel’s existence, “the right,” broadly speaking, was hostile to Israel. Foreign policy wonks saw Israel as a barrier to friendly relations with needed Arab allies, traditional Midwestern conservative isolationism cautioned against entangling the U.S. in the Middle East, and one can’t discount the influence of anti-Semitism. But the realists have largely been written out of conservatism, Midwestern isolationism has given way to concern over the common enemy of Islamic fanaticism, and anti-Semitism is no more prevalent these days among conservatives than among liberals, with philo-Semitism likely more common among the former thanks to some significant shifts in evangelical Christian theology. So, just as one indication of the shift, in the last year I’ve seen several “support Israel” bumper stickers on cars accompanying either conservative or Christian (or both) bumper stickers, in various places around the U.S.

Meanwhile, Israel is becoming a problem for Ron Paul. Yesterday, an NPR report from New Hampshire included the views of a conservative New Hampshireite who loves Ron Paul views on just about everything, but can’t support him because of his lack of support for Israel. ABC News reports on a town meeting in Webster City, Iowa, in which “Paul took a question from a member of the audience who urged him to ‘tell everyone that you love Israel.’” Indeed, it seems that there may be a larger (numerically but not proportionately) base of non-Jewish conservatives that make Israel a litmus test issue than of American Jews.

Interestingly enough, my take on Paul’s campaign is that it appeals to libertarians, but also to a previously quiescent group in American politics, the sort of folks who dominated the American right before the Goldwater campaign. These folks had generally libertarian views on the scope of federal power, but combined it with a populist suspicion of elites, a suspicion of foreigners that led to hostility to immigration, free trade, and foreign policy entanglements (all of which Paul, in practice, opposes), lack of empathy for American minority groups, and a penchant for conspiracy theories. Paul’s record of lack of sympathy for Israel, which goes well beyond his distaste for foreign aid and alliances (e.g.), is fully consistent with his appeal to that base but is apparently becoming a real barrier to his gaining traction among conservatives, so much so that he has lately been trying to portray himself as a true friend of Israel.

I’m not going to open comments on this one, just because I simply can’t stomach reading the type of comments that a post like this typically brings out, especially the wildly ignorant “the evangelicals only support Israel as a prelude to the Second Coming at which time all the Jews will be massacred” meme.

UPDATE: On the latter issue, I commented back in 2006:

If you’re thinking, “they just want to help Israel because they think it will hasten the coming of Battle of Armaggedon,the Rapture, and the conversion/death of all the Jews,” get over it, it just ain’t so. I’ve corresponded with quite a few evangelical supporters of Israel, as well as former evangelicals familiar with the movement, and all agree that the percentage who support Israel for that reason is tiny (equivalent, perhaps, to the Jewish meshuggahs who want to imminently build the Third Temple on the Temple Mount in Jerusalem), though if you read liberal Jewish sources you would come away convinced that it’s 99% of them.

With the holidays approaching, I thought I’d provide a friendly reminder that books by Volokh Conspiracy bloggers make great presents for that special legal theory nerd/historian/law student/libertarian/law geek/Second Amendment enthusiast/educated lay reader/etc. on your list. It’s also a nice way of showing appreciation for our bloggers.

And some links for your convenience:

Adler, ed., Rebuilding the Ark: New Perspectives on Endangered Species Act Reform

Baker, Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism

Barnett, Restoring the Lost Constitution: The Presumption of Liberty

Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform [In preparing this post I noticed that for no apparent reason Amazon has suddenly and drastically reduced the price of Rehabilitating Lochner from $35+ to $23, by far the lowest price I've seen for it. I don't know how long this will last, but if you've been thinking of buying the book, now is a good time!]

Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas (pre-order)

Kopel, Aiming for Liberty: The Past, Present, And Future of Freedom and Self-Defense

Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace

Volokh, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review

UPDATE: Note that I didn’t include casebooks, treatises, and hornbooks in this list, because, e.g., who really wants to get Bernstein et al., The New Wigmore: Expert and Scientific Evidence for Christmas?

Well, yesterday was certainly a good day for one of my least favorite American politicians of the twentieth century, Theodore Roosevelt, who combined gross economic ignorance with an almost adolescent jingoism. GOP frontrunner (!) Newt Gingrich has (once again) declared himself to be a “Theodore Roosevelt Republican” (though disclaiming the more socialistic Roosevelt of his post-presidential career) while President Obama, in a much ballyhooed speech, lavished praise on post-presidential Teddy for recognizing the need to add many layers of regulation to the free market.

But the main topic of this post is President Obama’s acceptance and elaboration of Progressive mythology about pre-Progressive America, the America of the late nineteenth and early twentieth century, before a wave of Progressive and World War I inspired regulation significantly increased the role of government in American economic life.

Here’s Obama:

You see, this isn’t the first time America has faced this choice. At the turn of the last century, when a nation of farmers was transitioning to become the world’s industrial giant, we had to decide: would we settle for a country where most of the new railroads and factories were controlled by a few giant monopolies that kept prices high and wages low? Would we allow our citizens and even our children to work ungodly hours in conditions that were unsafe and unsanitary?

This line of thought goes back to the Progressive era itself. As I point out in Rehabilitating Lochner: “Progressives were convinced workers’ living standards were falling, and were in constant danger thanks to unregulated immigration, unregulated labor markets, and a paucity of strong labor unions. Supporters of liberty of contract, by contrast, believed that workers’ lot, though often unpleasant, was gradually improving thanks to the American system of contractual freedom.”

Contrary to the implications of Obama’s speech, the latter group seems to have had the better of the argument. Despite massive immigration during this period and despite (or maybe because of) the lack of labor regulation and low unionization, best estimates are that real wages in manufacturing in the U.S. increased almost 40% between 1890 and 1914. Lawrence H. Officer, Two Centuries of Compensation for U.S. Production Workers in Manufacturing (2009); Albert Rees, Real Wages in Manufacturing 1890-1914 (1961). [Update: I don't have statistics handy, but working hours were going down without government intervention--for example, few bakers, the subject of the 1895 ten-hour a day law invalidated in Lochner, worked more than ten hours by 1910--and child labor was declining rapidly outside the impoverished Deep South.]

Oddly enough, Obama also praises Roosevelt for supporting a minimum wage for women. Chapter 4 of Rehabilitating Lochner describes the impetus for such laws, and much of the relevant the information in that chapter can be found in this paper published in Law and Contemporary Problems. The history is too rich to give an adequate summary here. Let’s just say that the history of such laws is not pretty. The laws’ primary supporters included male-only labor unions that wanted to keep women out of the workplace–women-only minimum wage laws almost never passed without strong from unions that typically opposed minimum wage laws for men; eugenicists who wanted women to stay home and take care of their children; bigots who thought that only the lower order of men (including Eastern European immigrants) would allow their women to work for wages; moralists who believed that low-wage women were susceptible to vice and should therefore stay out of the workforce; and economists who believed that, as Felix Frankfurter summarized in his brief in Adkins v. Children’s Hospital, women who wanted to work but could not command a government-imposed minimum wage were “semi-employable” or “unemployable” workers who should “accept the status of a defective to be segregated for special treatment as a dependent.”

While Democrats are sure to fall all over themselves portraying Newt Gingrich as a laissez-faire extremist, there is little if anything in the actual public record to support that portrayal. Indeed, I saw Gingrich give a talk at the height of his power, circa mid-1995, via the Smithsonian Associates program. The only reason I remember it is because I was so surprised, and appalled, at the theme: that to solve modern problems we should emulate the early 20th century Progressives, who combined opposition to socialism with support for a “can do” government that could bust trusts, build infrastructure, and otherwise create public goods. If he had any concerns about the foibles and fallacies of the Progressives, I don’t believe he mentioned them. It’s been sixteen years, so further details are vague, but I distinctly recall that my companion and I, both libertarians, went in admiring Newt, and left both disgusted and with a distinct impression, given the grandiosity of his vision that “this [i.e., his Speakership] isn’t going to end well.”

And please note that while Progressivism is today associated with the “left,” historical Progressivism encompassed many important figures who would not have been considered such (and wouldn’t have considered themselves such) at the time, most prominently Theodore Roosevelt. What they had in common with their left-leaning compatriots was opposition to laissez-faire, faith in government’s ability to solve and manage social problems, and, with regard to the politicians among them, confidence in their own ability to lead and direct the masses for the latter’s own good.

Go Huntsman?

UPDATE: Note that the types of reforms that Gingrich advocated in the ’90s–term limits, balanced budget amendment, rotating committee chairs, and so forth–are the types of reforms that the Progressive movement successfully embraced one hundred years ago (think of recalls, referenda, Senatorial elections, judicial selection committees, and so forth).

In a sense, Gingrich’s lack of ideological pro-limited government compass could make him a dangerous enemy. But exactly why Tea Party Republicans should embrace him, beyond understandable dissatisfaction with Romney, is unclear. One thing in Romney’s favor: he took moderate, often anti-libertarian positions while governing a very liberal state, suggesting that he may in fact have more conservative and pro-free market views. Gingrich’s statist inclinations, by contrast, seem entirely sincere.

Related, TPM via a commenter: “The Libertarian Intelligentsia is Freaking Out over Newt.”

Jerusalem Post:

After 20 months of attacks and a quarter million shekels in damage, a religious bookstore in the ultra-Orthodox Mea She’arim neighborhood of Jerusalem decided on Monday to accede to the demands of extremists responsible for the violence.

Under the terms of the compromise, Ohr Hachaim/Manny’s put up a large sign requesting that all customers dress modestly. A mashgiach, who checks the store’s inventory to make sure there are no controversial books, will go over the books in the coming week and require that some books be removed from the shelves, though they will not be permitted to remove any English books, said Marlene Samuels, one of the store’s managers.

A haredi group called Sikrikim deemed the store as “promoting immodesty,” and since Manny’s opened in March 2010, the group has smashed its windows more than a dozen times, glued its locks shut, thrown tar and fish oil at the store and dumped bags of human excrement inside. The owners were also personally threatened multiple times.

One of the group’s leaders has been arrested, which apparently allowed the bookstore owners to reach a “compromise” than fell short of acceding to all of the extremists’ demands. Nevertheless, this strikes me as a result an abdication of responsibility by Israeli authorities. The owners had to pay for their own security guards. How about a police patrol protecting the store? The leader was arrested, great. But what about all the lower-level thugs who perpetrated the vandalism and threats? The Israeli government has long permitted Haredi extremists to be above the law, permitting them enforce “modesty” rules on public streets via violence and threats, illegally segregating the sexes on public buses, tolerating violent demonstrations against construction projects allegedly taking place on ancient cemeteries, and so on. Not to mention the greatest malfeasance of all, allowing Haredi extremists to take control of domestic relations law. With the Haredi population increasing exponentially, the government needs to stand up for liberalism while it still can.

My latest article in the Green Bag (link will open seven-page PDF file):

(1) First, social reform was not in nearly as much danger from Lochner as the standard story suggests….

(2) The supposed simple-minded formalism of late nineteenth and early twentieth century judges has been called into serious question by recent scholarship….

(3) Brandeis’s Muller brief was not as original as his admirers have suggested….

(4) Brandeis’s brief was not as bold as often portrayed, because Oregon’s attorney general filed a traditional brief focusing on the relevant legal precedents….

(5) Brandeis’s brief, rather than being a social science masterpiece, consisted largely of a “hodgepodge” of reports of factory or health inspectors, testimony before legislative investigating committees, statutes, quotes from medical texts, among other miscellany. Some of the “scientific” arguments presented in the brief are nonsensical, even given the state of medical knowledge at the time….

(6) Brandeis’s brief likely did not influence a single vote on the Supreme Court….

(7) While Brandeis Briefs quickly became commonplace in constitutional litigation over social reform, such briefs did not have any clear significant effect on the outcome of Progressive-era cases….

Bonus myth: Despite many assertions to the contrary, Brandeis evinced little interest in women’s legal equality, and was at best a very tepid supporter of women’s rights.

From the Oct. 31 issue of Time, re Citizens United:

I feel strongly that the court made a serious mistake in finding that money is the equivalent of protected speech. If followed out to its logical conclusion, that would have provided First Amendment protection to the Watergate burglars. They were financed with campaign expenditures.

Huh?

According to leftist gay [judging by this piece, she obviously cares much more about leftism than about gay rights] activist Sarah Schulman, it’s the following: “Last year, the Israeli news site Ynet reported that the Tel Aviv tourism board had begun a campaign of around $90 million to brand the city as ‘an international gay vacation destination.’”

I kid you not. Schulman, it should be said, is making something of a hobby of being a leading member of what has to be the rather small club of “Jewish lesbians for Palestine.” Here’s a short (and dishonest) video of her attacking Israel as “unprogressive.”

Professor Schulman, if you happen to read this, I have an offer for you: I will pay for your ticket to Israel and accommodations, if you will agree to live among your “progressive” allies as an openly gay Jewish woman in Gaza for one month. But my offer is a bit disingenuous, because it’s very unlikely that I would need to pay out for more than a one-way ticket, and a few days of accommodations.

Professor Jacobson has more.

Having a hard time getting a straight answer on this one. Let’s say you hold 1,000 shares of a stock short. The company announces that it’s doing a rights offering, and for every share a holder owns, you can buy a newly issued share directly from the company for 90% of the closing price on December 31st. You hold the shares short through the ex-date of the rights offering. The underlying owner of the shares you’ve borrowed decides to exercise his rights, and requests 1,000 new shares at 90% of the December 31 price. Who is responsible for providing these new shares to the owner, the company that issued the rights, or you? Please only respond if you have real expertise on this.

UPDATE: A little more research seems to suggest that the short borrower is obligated to deliver the rights to the owner, but then the owner gets to exercise, or sell, the rights as he see fit. So the short borrower is on the hook, at most, for the value of the rights. Correct?

University of Wisconsin Professor (and Seventh Circuit nominee) Victoria Nourse and I discussed Lochner v. New York for the Federalist Society’s Madison chapter. Wisconsin Eye (Wisconsin’s version of C-Span) was there, and posted this video of the event.

In other Rehabilitating Lochner news, attorney Thomas Bowden’s review in the George Mason Law Review can be found here. (“A a serious and significant work of historical revisionism. … Rehabilitating Lochner belongs on the short list of works that effectively debunk myths clinging to important Supreme Court cases.”)

As a reminder, you can read the introduction to the book for free here.

It turns out that various politically active, generally far left-wing Israeli NGOs, some of which deny the very legitimacy of the Israeli government, get funding from various European governments (see, e.g., this detailed NGO Monitor Report, which focuses only on funding through the EU itself; member states provide substantial additional funding). Some of these organizations, for example, support the international “Boycott, Divestment, and Sanctions” efforts against Israel. (Exactly why European governments fund NGOs whose views diametrically oppose the governments’ official policies vis a vis Israel is an interesting question that we’ll leave to another time).

These NGOs are often given special legitimacy in the international media because they are purportedly Israeli NGOs. NGO Monitor’s investigations show that many of them are, in fact, organizations with little if any domestic base within Israel and instead represent the views of the international far left with a fig leaf of Israeli leadership drawn from its domestic far left.

Israelis, tired of this rather subtle form of ideological warfare emanating from their purported friends among governments in Europe, are now considering a measure that would ban foreign government funding of political NGOs above a certain low level. (UPDATE: Many of these organizations have also received substantial funding from private organizations like the Ford Foundation and the New Israel Fund, but the legislation in question does not target such private contributions.) Whether this particular measure is workable, and whether it’s the best way to deal with the situation, I’ll again leave for another time.

What’s striking, however, is the EU’s reaction:

The EU’s ambassador to Israel, Andrew Standley, contacted the prime minister’s national security adviser, Yaakov Amidror, on Thursday and warned him that passage of the legislation could harm Israel’s standing in the West as a democratic country.

So the idea here, obviously is that a “democratic” country must allow foreign governments, who represent foreign citizens and not Israelis, to interfere in its domestic politics by supporting organizations that range from the fringe left to beyond the fringe left.

Now that is chutzpah! Imagine if Israel was funneling millions of Euros annually to Basque separatists in Spain, Flemish nationalists in Belgium, or to one of numerous neo-fascist fronts in Norway and France. I have a very strong feeling that the EU’s views of what “democratic” countries must tolerate from foreign governments would change rather quickly.

UPDATE: Among other laws, in the U.S. the NGOs in question would be subject to the Foreign Agent Registration Act which, according to the official website, “requires persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities. Disclosure of the required information facilitates evaluation by the government and the American people of the statements and activities of such persons in light of their function as foreign agents.” Last I heard, Israel had no such requirements, but perhaps the EU thinks that the U.S. is “undemocratic” as well.

FURTHER UPDATE: As near as I can make out, Kevin Jon Heller responds to my hypothetical suggesting that EU countries would not take kindly to Israeli interference with their domestic politics with the notion that EU nations should be free to donate to leftist Israeli NGOs because they are “progressive” and purport to be “human rights” organizations. On the other hand, it would be a completely different story if Israel chose to donate to European neofascist groups or Basque separatists because these are not “progressive” organizations, even though, of course, they purport to be promoting the human rights of their constituents. In other words, interfering with local democracy is fine promotes Heller’s ideological agenda, but not fine if it doesn’t. I’m glad we’ve cleared that up. And for those coming here from Heller’s link, please note that contrary to the impression you may have gotten from Heller’s post, I “defended” the pending legislation only from charge of being “undemocratic,” without endorsing it.

It hasn’t changed since I wrote the following almost a year ago: What the opponents of the individual mandate had to do was provide plausible arguments that the individual mandate is distinguishable from precedents like Wickard v. Filburn and Gonzales v. Raich. Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.

The modern Supreme Court is reluctant to directly overrule precedents, especially well-entrenched precedents, but is not at all reluctant to distinguish precedents, even when the distinctions in question are quite strained. I could present many examples, but just consider, for example, how Boy Scouts of America v. Dole turned out not to be governed by Roberts v. United States Jaycees; the Court distinguished Matthews v. Eldridge from Goldberg v. Kelly; or how the Court has gone back and forth between relying on Mulligan and Quirin in detainee cases without overruling either one of them, or really explaining how they don’t contradict each other.

So now that the opponents of the individual mandate have manged to make arguments that pass the laugh test, the Supreme Court’s ultimate decision will involve such factors as: (1) How popular will the individual mandate, and health care reform more generally, be when the Court takes up the issue?; (2) How popular will President Obama be at that time? (3) The Republicans on the Court will undoubtedly be less likely to support a law passed with only Democratic support; (4) Will Justice Kennedy be more in the mood to be susceptible to the “Greenhouse Effect,” or to cement his conservative credentials, which in part will depend on, “How close to retirement is he?” (5) Does Justice Scalia think that invalidating the individual mandate will somehow hurt the cause of ultimately overruling Roe v. Wade, something that I think is always on Justice Scalia’s mind? (6) Will the Republican House and the expanded Republican minority in the Senate show in any way that they take federalism and limited national government seriously, the way the Contract with America undoubtedly made Lopez more viable, and the Big Government conservatism of the Bush Administration helped lead to Raich? (7) Will the Court have other issues before it on which the conservative Justices would rather spend their political capital? And so on… UPDATE: [8] I left out a crucial factor: If the liberals on the Court, like the dissenters in Lopez, are unable to articular a limiting principle that would prevent their decision from giving the federal government an essentially plenary police power to regulate virtually all human activity and inactivity, the individual mandate is doomed. The conservative majority simply will not accept a doctrine that suggests that federal power is not one of limited and enumerated powers.

Looking at these factors a year later: (1) The mandate is unpopular, and less popular than ever; (2) Ditto for the president; (3) no change; (4) Kennedy seems to have no intention of retiring; (5) there has been a conservative backlash over Scalia’s decidedly non-originalist opinions in Raich and McDonald, which has eroded Scalia’s standing among Federalist types in favor of Thomas as the new standard-bearer. I can’t imagine that Scalia is completely oblivious to this, or to the fact that a vote upholding the mandate will erode his standing further, but the Roe v. Wade question lingers; (6) the Republicans have not shown that they take federalism at all seriously; (7) there are no other issues of similar magnitude before the Court; and (8) this remains to be seen.

Also, consider this line: “Whether or not the best interpretation of those precedents supports the individual mandate or not is almost entirely irrelevant.” A conscientious circuit court judge, particularly one who, like Judge Silberman, has a lot invested in his reputation as an advocate of judicial restraint, could quite plausibly find that the best interpretation of precedent supports the constitutionality of the individual mandate. But when the case gets to the Supremes, the only relevant question is whether prior precedent clearly dictates upholding the mandate. I think the answer to that has been shown to be “no,” given all the opinions going the other way.

In short, I think the factors I enumerate are far more likely to affect the Court’s ultimate decision than whether Judge Sutton or Judge Silberman voted to uphold the mandate. I’m still not terribly optimistic that the mandate will be invalidated, but not because of the lower court opinions.

UPDATE: A clarification: I think likely all the conservative Justices on the Court think that if they were deciding things as an initial matter, without any relevant precedents and no political constraints on the Court, that the mandate would be unconstitutional as beyond Congress’s power under the Commerce Clause. The constraints of both politics (in the broad sense of the word, including the Court being wary of preserving its authority and so on) and judicial culture (respect for precedent) are what would prevent the Court from invalidating the mandate. So I’m not arguing that the majority would invalidate the law because it suits them “politically.” I suspect that they all really think the law is unconstitutional but because of precedent and politics they need the right political environment to say so. If, for example, both the law and Obama were polling at 70%+, and the law had been passed with significant Republican support, and some of the leading Republican candidates supported the law, the chances that the Court would invalidate it would be approximately zero, regardless of the Justices’ views of its constitutionality. Maybe Thomas would dissent.

The review starts:

The book “Rehabilitating Lochner” is about a U.S. Supreme Court decision that generations of lawyers and law students have been taught to scorn as the imposition of obsolete economic dogma disguised as constitutional principle….Comes now Professor David E. Bernstein of George Mason University School of Law, who seeks to set the record straight by bestowing respectability on the Lochner case. Not every reader will agree with every step in his reasoning, but it is difficult not to respect his scholarship and conscientious facility of expression.

And concludes:

Not all [readers] will find unchallengeable every point that the author makes. Yet all, or so this reviewer predicts, will broaden their understanding of our national charter and what the Supreme Court has done with it in the past century or so.

One aside: the reviewer wonders why I spend a chapter discussing the background of Lochner, focusing on the special interest politics designed to lead to a law that would favor large corporate bakeries over struggling mom and pop operations. I was reminded of why just today, while I was reading a Yale Law Journal article published just a year ago. The author describes Lochner, among other cases, as “remembered for … its indifference to inequalities of bargaining power between industrial workers and employers.” As Glenn Reynolds pointed out in his review of my book, over time “an opinion that stopped a joint effort by large corporate interests and big unions to squash small businesses was somehow turned into the centerpiece of a narrative about the Supreme Court upholding big business at the expense of the little guy.” And that seemed like a story worth telling.

This is VERY funny. Hat tip to my colleague Chris Newman.

Here’s an interesting article by Stanislaw Krajewski, who asserts ten theses:

1. Marxism, radical leftist ideologies, and “real socialism” constitute not only a fragment of world history, and of Polish or Hungarian histories, but also a chapter in Jewish history.

2. Antisemites have grossly exaggerated the Jewish involvement in communism, distorted the facts, and interpreted them according to mythical conspiracy theories.

3. Jews were also victims of communism.

4. Jewish communists rarely cared about Jewish concerns and often virtually stopped being Jewish.

5. Some of those who had abandoned Jewishness later came back. The number of Jewish communists, and their role, was so important that other Jews must not ignore it.

6. The deepest problem is posed by the quasi-religious character of the communist involvement of some Jews.

7. There is no distinctive Jewish radicalism. There is no “Jewish Communism.” Jews became communists because of general social trends.

8. It was not Judaism or Jewish traditions but the social situation that led Jews to communist involvement.

9. Participation in evil can begin with noble and selfless intentions.

10. Moral responsibility can be indirect. Re-emerging Jewish communities in Eastern Europe should face the legacy of Jewish participation in communism. However, accepting a Jewish share of moral responsibility does not make non-Jews less responsible. Objective research is needed to clarify the extent and the nature of the Jewish participation in communism. The tragic consequences of the antisemitic myth of “Jewish Communism” should impose no taboo.

I’m less familiar with the situation in Europe, but it’s irked me for some time that for the most part, mainstream American Jewish sentiment not embarrassed by the disproportionate role Jews played in American Communists. Indeed, even the most hardcore Stalinists, including the Hollywood Ten, the Smith Act defendants (most of whom were not Jewish), and sometimes even the Rosenbergs, are often romanticized. It’s one thing to contend (dubiously) that such individuals were treated unjustly; it’s quite another to treat them as civil libertarian heroes [update: for an example, see this op-ed on an event at the DCJCC in 1998; I remember being as appalled as the op-ed author by the exhibit]. (As an aside, the Smith Act, the law that was used to prosecute the C.P. leadership, was passed in 1940. In 1941, the government prosecuted eighteen leaders of the Trotskyist Socialist Workers Party under the Smith Act. The Communist Part not only applauded this action, Party leaders assisted in the prosecution.)

Disclosure: My maternal grandfather’s family were associated at a very low level with some Communist front groups (and my great uncle was supposedly delivered by Dr. Armand Hammer) [in the early 20th century], though I have no idea if any of them were actually ever became members of the party. In her youth, my mom campaigned for Henry Wallace for president [though Wallace himself was not a Communist, his campaign was rife with them], though she claims to have done so primarily because “that’s where all the cute Jewish boys were.” Nowadays, and quite unusually for someone of her background, she’s a hardcore Republican.

Newt Gingrich is starting to look kind of attractive, relatively speaking.

(If only Gary Johnson could get some traction…)

UPDATE: On cue, the Washington Post has a story about Republicans giving Gingrich a second look.

Here is a link to the review, in the latest issue of the Claremont Review of Books. Scott Johnson of Powerline has a brief comment on/summary of the review here.

As a reminder, if you are interested in reading the book but don’t want to buy it University of Chicago Press is offering a 30-day e-reader version license for $7.00.

There was a time, way back in the mid-1980s, that I considered myself a libertarian on domestic policy and a Commentary-style neoconservative on foreign policy. The latter meant that I supported U.S. efforts to “export liberal democracy.”

At some point, however, a contradiction became apparent: if I didn’t trust the government to competently run, say, public schools, what made me think that the the government, subject to the same public-choicey and other constraints, would be competent at handling the much more complex task of remaking other societies in America’s image?

That was the end of my neoconservatism. The utter incompetence that the U.S. has displayed in both Iraq and Afghanistan–apparent, I think, regardless of whether one believes that the U.S. was justified in overthrowing Saddam and the Taliban–has hardly made me rethink things.

UPDATE: This post was prompted in part by two excellent essays in the most recent Claremont Review of Books, one by Mark Helprin, the other by Angelo Codevilla. Together, they paint a devastating portrait of U.S. foreign policy since 9/11, although I don’t agree with everything that either author has to say.

One can glean the following points from their essays: (1) Even if “regime change” is warranted, hanging around to engage in nation-building typically is not; (2) U.S. foreign policy interests in the Muslim world consist primarily in the relatively limited goal of having friendly (or at least non-hostile) regimes there, not in decreeing that it’s liberal democracy or bust, especially when the local populations are far more preoccupied with inter-ethnic conflicts of no interest to the U.S.; and (3) to the extent the U.S. has to engage in draconian tasks like invasion and occupation, it must do so with full force, full commitment (including a commitment to take on regimes like Iran if they support attacks on our soldiers), and, most important, with huge resources because the incompetence of government will inevitably mean that accomplishing U.S. goals will be vastly more expensive than planners will anticipate.

Times:

In his last years, Steven P. Jobs veered from exotic diets to cutting-edge treatments as he fought the cancer that ultimately took his life, according to a new biography to be published on Monday. His early decision to put off surgery and rely instead on fruit juices, acupuncture, herbal remedies and other treatments — some of which he found on the Internet — infuriated and distressed his family, friends and physicians, the book says.

Really? A man on the cutting edge of technology like Jobs eschewed scientifically proven treatments (at least initially) for new age nonsense? How disappointing, and sad for him and his family.

As the communal sleeping bag argument between Lauren Digion and Sage Roberts threatened to get out of hand, a facilitator in a red hat walked by, brow furrowed. “Remember? You’re not allowed to do any more interviews,” he said to Digion. She nodded and went back to work. But when Roberts shouted, “Don’t tell me what to do!” Digion couldn’t hold back.

“Someone has to be told what to do,” she said. “Someone needs to give orders. There’s no sense of order in this fucking place.”

From a very amusing piece in New York Magazine, via Ted Frank on Facebook.

This book is getting a fair amount of attention, including this scathing review in the New York Times. In 2010, I wrote about a ridiculous piece on Ayn Rand published by Robin, and it’s worth reposting now.

I just came across this essay in The Nation by one Corey Robin about Ayn Rand.

I think Robin is serious, but the piece works best as a satire of a certain type of right-wing hit piece on left-wing intellectuals.

Mocking the subject because she has many Hollywood devotees who don’t seem that bright? Check!

Suggesting that the subject’s personal idiosyncracies discredit her intellectual contributions? Check!

Finding a random Hitler quote that sounds like something the subject might say, to suggest that the subject, despite her strong antifascism, was really a fascist? Check!

Ridiculing the subject for not appreciating how the country she grew up in gave her the opportunity to thrive, which she then used to attack the country’s political system? Check! (Though this is the first time I’ve heard someone suggest that an intellectual should be grateful for growing up in the USSR. Among other things, Rand apparently should have been grateful to the Bolsheviks for “subsidizing theater for the masses.” Yet, I really don’t think this is meant to be a satire.)

An obscure academic dismissing one of the twentieth century’s most influential writers as a “mediocrity,” without any indication that the author really understands his subject’s appeal. Check!

I don’t think I’ll be picking up The Reactionary Mind any time soon.

UPDATE: I took a quick look at the book via “look inside this book” on Amazon, and saw that the Rand material made it into the book. Not a promising sign.

FURTHER UPDATE: I just came across this quote from the book, which may be just about the most bizarre comment on libertarians and libertarianism that I’ve ever seen from a not completely uninformed commentator: “When the libertarian looks out upon society, he does not see isolated individuals; he sees private, often hierarchical, groups, where a father governs his family and an owner his employees.” I’ve been reading libertarian literature and hanging out with libertarians for over two decades now, not to mention being a libertarian myself, and all I can say is, “WTF?”

Meanwhile, here’s a response by Robin to my original post.

Their recent columns on Israel provide about as clear and succinct examples of diametrically opposed views on who is to blame for the current Israeli-Palestinian impasse as you are likely to find. Here’s Krauthammer, blaming the Palestinians. Here’s Kristof, blaming the Israelis.

You won’t be surprised to learn that I think Krauthammer is much closer to the truth. As for Kristof, anyone thinks it’s clever to write a line like “That’s the saddest thing about the Middle East: hard-liners like Hamas empower hard-liners like Mr. Netanyahu”–which, by equating the two parties, implies either that Hamas is as willing as Netanyahu to commence negotiations forthwith and has already recognized the other side’s right to a state, or that Netanyahu is, or at least is as “hard-line” as if he were, a casually genocidal ideologue whose governing ideology is based on a combination of medieval religious doctrine and modern racist conspiracy theories–ultimately doesn’t deserve to be taken seriously. But your mileage may vary.