The Volokh Conspiracy

In a previous post, I argued that Supreme Court justices should not decide the individual mandate case based on the decision’s effect on their perceived “legitimacy.” Mark Tushnet asks, why not?

[W]hy exactly shouldn’t [Chief Justice John Roberts] worry if he believes that a Court decision — any one, really — will impair the Court’s legitimacy, in the sense that it would make it more difficult for the Court to hold public support for its (other) decisions? Or, believes that a decision will not be seen in retrospect as a wise one (the “verdict of history” point)? I’m not here endorsing the view that a decision striking down the Affordable Care Act would impair the Court’s legitimacy or be seen in retrospect as unwise, just wondering what’s wrong with taking those things into account when a justice is thinking about how best to interpret the Constitution. (Would Justice Henry Billings Brown have been wrong to think about them when trying to decide whether to pull his draft opinion in Plessy v. Ferguson in favor of Justice Harlan’s dissent?…)

This is a good question. The answer, in my view, is that the job of Supreme Court justices is to enforce the Constitution, not to make decisions that will have broad public support or be perceived as legitimate. Indeed, judicial enforcement of constitutional restrictions on government power is particularly crucial precisely in those cases where violations of those restrictions enjoy strong political support. To turn Mark’s question about Plessy around: Was Justice Brown’s decision justified by the fact that a contrary result might have been considered “illegitimate” by majority public opinion in the 1890s, and deeply resented by millions of white southerners? Was Korematsu justified because the internment of Japanese-Americans enjoyed overwhelming public support at the time, and a decision striking it down would have been widely denounced as an illegitimate intrusion on the wartime powers of the political branches?

This point applies to legitimacy in the eyes of future public opinion, as well as contemporary opinion. Future public opinion can easily be wrong, and can often support violations of the Constitution. For example, public opinion in 1900 was far less favorable to judicial enforcement of African-American rights than public opinion in the 1870s. If 1870s Supreme Court justices could accurately predict that trend, would they have been justified in cutting back on enforcement of the Fourteenth Amendment? It’s possible that future terrorist attacks will turn majority public opinion strongly against the Supreme Court’s Guantanamo decisions. If the justices believed that to be likely, should they have endorsed the Bush administration’s position in those cases in order to get on the “right side” of history?

Nonetheless, I think there are narrow circumstances where courts can legitimately take account of legitimacy. One such situation is when a correct constitutional decision would attract such wide opposition that it cannot be effectively enforced. If that is the case, courts are simply incapable of doing their normal duty, and perhaps they would be justified in not even trying. The case for making discretion the better part of valor in such situations might be especially strong if a the correct-but-unenforceable decision undermines the Court’s ability to enforce other parts of the Constitution in future cases. Perhaps a decision like Korematsu can be defended on that basis. A contrary ruling would almost certainly have been successfully disobeyed by the president and Congress. On the other hand, it’s possible that correct decisions in such cases would at least increase the chance that public opinion would change in the future, making it possible to eventually enforce the Constitution at a later date.

It’s also possible that a decision perceived as illegitimate is itself enforceable, but might still undermine enforcement of future decisions by compromising the Court’s reputation. If this is the case, the justices will have to consider whether the future damage to the Constitution outweighs the constitutional principles that would be sacrificed by reaching the wrong result in the present case. I think this kind of scenario is unlikely. If people are willing to obey the initial “illegitimate” decision, it seems like they would also obey future decisions that are less controversial. But it’s not impossible.

In both of these scenarios, the reason why it is legitimate for the justices to consider legitimacy is because of its potential effect on their ability to do their proper job of enforcing the Constitution – not because legitimacy is valuable in itself.

I think it’s fairly clear that a decision striking down the mandate doesn’t even come close to falling into one of these two categories. As I discussed in my previous post, the vast majority of the public – including many Democrats – would actually support such a ruling.

One can reasonably argue that legitimacy should play a much larger role in judicial decision-making than I would support. Perhaps the justices should value legitimacy for its own sake. Alternatively, perhaps widespread and deeply felt public opposition to a given ruling should lead the justices to doubt the validity of its reasoning. However, anyone who believes that the Court should uphold the mandate because of the perceived illegitimacy of a contrary ruling must also oppose other decisions that are viewed as illegitimate by a larger proportion of the population. These include cases such as Roe v. Wade, Kelo v. City of New London, the school prayer and religious display decisions, the Guantanamo cases, several of the Warren Court’s defendants’ rights rulings, the flag burning cases, and other decisions supported by liberal constitutional theorists. At the time they were decided – and in some cases even today – each of these rulings were perceived as illegitimate by a larger proportion of the public than is likely to oppose a decision striking down the mandate. Some of them also attracted vociferous criticism by parts of the legal elite.

In my view, many of the above decisions were actually correct. That’s because I do not think that perceived legitimacy should be an important factor in Supreme Court decision-making, except in very rare instances. But if you believe that legitimacy should be a major factor when it comes to the mandate, that principle cannot be limited to the present case. You have to apply it consistently across the board. Doing so would call into question a wide range of Supreme Court decisions.

UPDATE: I have slightly edited this post to fix one or two typos.

Various defenders of the individual mandate have long argued that if the Court strikes down the law, it is likely to lead to the resuscitation of Lochner v. New York and the invalidation of a wide range of economic regulations. This meme has most recently been taken up by Jeffrey Rosen, who claims that striking down the mandate would be “resurrecting the pre–New Deal era of economic judicial activism with a vengeance.” Others have made similar claims, as I describe here.

I. Why there is no Doctrinal Connection Between Lochner and the Individual Mandate.

In reality, the individual mandate has no doctrinal connection to Lochner or any other economic liberties or property rights cases. I covered the reasons why in detail in this article (pp. 99-101). Co-blogger David Bernstein, a leading academic expert on Lochner, makes some additional relevant points here.

To briefly summarize, this case is different from Lochner for two reasons. First, Lochner restricted some types of economic regulations by the states as well as the federal government. If the Supreme Court invalidates the federal individual mandate because it is beyond the scope of congressional authority, states such as Massachusetts would remain free to adopt mandates of their own.

Second, even the federal government would still have extraordinarily broad authority to regulate actual economic transactions, including employment relationships, manufacturing, the purchase of goods and services, and so on. Congress would only be denied the power to impose mandates under the Commerce Clause in the absence of some preexisting “economic activity.” Even the Court’s most extreme previous Commerce Clause decisions – such as Gonzales v. Raich – would remain in force. I would be very happy to get rid of Raich, a dubious decision that concluded that Congress’ power to regulate interstate commerce allowed it to forbid the possession of medical marijuana that had never crossed state lines or been sold in any market. But doing so isn’t necessary to strike down the mandate.

Conversely, if the Court upholds the mandate, that will in no way prevent it from strengthening enforcement of constitutional protections for economic liberties and property rights in future cases. Even if there are no enumerated powers limits to congressional authority under the Commerce Clause, that authority is still limited by the individual rights provisions of other parts of the Constitution. Many libertarians, including myself, believe that the Constitution imposes both stringent structural limitations on federal power and substantial individual rights-based ones. But it is perfectly possible for one to exist in the absence of the other. A decision upholding the individual mandate would not dictate the proper interpretation of the Takings Clause of the Fifth Amendment. Thus, it would not make it any less feasible for the Court to alter the questionable second class status of property rights in current doctrine.

It also would not dictate the correct interpretation of the Due Process Clausesof the Fifth and Fourteenth Amendments, or the Privileges or Immunities Clause. Thus, the Court could uphold the individual mandate, yet still (in future cases) enforce these clauses’ protections for economic liberties, which as David Bernstein and others have shown, are deeply rooted in the text and original meaning of the Amendment. And even if the Court did begin to protect property rights or economic liberties more strongly, it would not necessarily go as far as the pre-1930s Court did, which itself was not nearly as far as many modern liberals imagine (the Lochner-era Court upheld far more economic regulations than it struck down).

Indeed, the case for increased enforcement of individual rights constraints on Congressional power would be stronger if the Court ruled that there are no structural limitations on its authority to impose whatever mandates it wants. And that is the likely effect of a decision upholding the mandate.

II. Lochner as Epithet and Guilt by Association.

Some of those who raise the spectre of Lochner to attack the case against the individual mandate may not have any specific legal doctrine in mind. They might simply be using Lochner as a synonym for any decision striking down “economic” laws that they think are constitutional. If that’s the case, however, then the Lochner analogy is just a political epithet rather than a serious argument – much like Republicans calling Obama a “socialist.” As David Bernstein puts it in his important recent book on Lochner, it’s yet another example of commentators using the case as a “vacuous, rhetorical shortcut” for denouncing “what [they] consider the ‘activist’ sins of their opponents” even in situations where the legal issues in question have little or no connection to either Lochner or the Fourteenth Amendment. Conservatives have often used Lochner as an epithet themselves. So it’s understandable that liberals would do the same thing. But such rhetorical ploys are not substantive arguments.

Finally, there is the notion that the case against the individual mandate is discredited by its association with “radical” libertarian arguments against various other parts of the post-New Deal legal order. Some invocations of the Lochner analogy may be intended to reinforce this meme.

David effectively dismantles such guilt by association claims here. I would add that the case against the mandate has attracted support far beyond libertarian circles, “radical” or otherwise. The anti-mandate plaintiffs include 28 state governments and many private organizations, including many who are far from libertarian. It also has the support of most of the GOP and the vast majority of the general public. As a libertarian myself, I wish it were true that all of these people had suddenly bought into a broad libertarian agenda. In reality, however, their support for the case against the mandate is mostly a result of the fact that it’s perfectly possible to conclude that this law is unconstitutional without being either libertarian or an opponent of the entire post-New Deal legal regime.

UPDATE: I have made a few slight revisions to this post in order to increase clarity and correct a typo.

Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly for the pro-mandate side. The most common are claims that a decision striking down the mandate would damage the Court’s “legitimacy,” that a 5-4 decision striking down the mandate would be impermissibly “partisan,” and that it would be inconsistent with judicial “conservatism.”

Even if correct, none of these arguments actually prove that the Court should uphold the mandate as a legal matter. A decision that is perceived as “illegitimate,” partisan, and unconservative can still be legally correct. Conversely, one that is widely accepted, enjoys bipartisan support, and is consistent with conservatism can still be wrong. Plessy v. Ferguson and Korematsu are well-known examples of terrible rulings that fit all three criteria at the time they were decided.

In addition, all three arguments are flawed even on their own terms.

I. A Decision Striking Down the Mandate is Likely to Enhance the Court’s Legitimacy More than it Undermines it.

Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New London dramatically demonstrated.

Striking down the mandate will damage the Court’s reputation in the eyes of many liberals and some legal elites. But a decision upholding it will equally anger many conservatives and libertarians, including plenty of constitutional law experts. There is not and never has been an expert consensus on the constitutionality of the mandate. Any decision the Court reaches is likely to anger some people, both experts and members of the general public. But more are likely to be disappointed by a decision upholding the law.

Ultimately, the Court should not base its decision in this case on “legitimacy” considerations. If the justices believe that the mandate is constitutional, they should vote to uphold it despite the possible damage to their reputations. But it would be a terrible signal if key swing justices refused to strike down a law merely because their reputations would be damaged in the eyes of a small minority of the public and a vocal faction of the legal elite. It would certainly call into question their willingness to make unpopular decisions that are compelled by their duty to uphold the Constitution, including in cases where they must strike down unconstitutional laws that really do enjoy broad public support.

II. An Impermissibly “Partisan” Decision?

Any decision striking down the mandate is likely to pit the five conservative Republican justices against the four liberal Democrats. Some commentators, such as Larry Lessig and Jonathan Cohn, claim that such a result would be impermissibly “partisan,” creating a perception that the Court is only willing to strike down “liberal” laws.

This sort of argument urges judges to engage in genuinely political decision-making in order to avoid the mere appearance of it. If a Republican-appointed justice votes to uphold a law he believes to be unconstitutional in order to avoid the appearance of “partisanship,” he would be allowing political considerations to trump his oath to uphold the Constitution.

Even if there is a judicial duty to avoid the appearance of a partisan split, why doesn’t it fall on the liberal justices just as much as the conservatives? If one or more of the liberal justices were to join the five conservatives in striking down the mandate, that would diminish the appearance of partisanship just as much as a conservative “defection” to the liberal side would.

Finally, this line of criticism overlooks an important reason why decisions enforcing limits on congressional power often have an ideological division: the Court’s liberals have consistently voted against nearly all structural limits on congressional power under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment. Thus, the Court enforces such limits only in those cases where the five conservative justices can agree among themselves. The only way for the conservatives to avoid the appearance of partisanship in this area would be complete abdication of judicial enforcement of structural limits on congressional power.

III. Consistency with Judicial “Conservatism.”

Jeffrey Rosen and others have argued that a decision against the mandate would be inconsistent with “conservative” attacks on “judicial activism” and deference to legislative judgment. Judicial conservatism is not a single, unitary entity. All sorts of decisions can potentially be justified on “conservative” grounds.

However, one major strand of conservative legal thought over the last thirty years has been the need to enforce constitutional limits on federal government power. This idea would be completely undercut by a decision upholding the mandate, since all of the government’s arguments in favor of the mandate amount to a blank check for unconstrained congressional power. As I explain in detail in this amicus brief for the Washington Legal Foundation and a group of constitutional law scholars, the government’s various “health care is special” arguments collapse under close inspection.

Conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And the originalist case against the mandate is very strong.

Conservatives and others can disagree among themselves as to how much deference should be given to Congress in any given case. In considering this issue, they should weigh two points that Rosen advanced in his important 2006 book The Most Democratic Branch: How The Courts Serve America.

Although generally advocating judicial deference to Congress, Rosen notes two important exceptions to this principle. The first is that “When Congress’s own prerogatives are under constitutional assault (in cases involving legislative apportionment or free speech, for example), it may be less appropriate for judges to defer to Congress’s self-interested interpretations of the scope of its own power.” Obviously, there are few more “self-interested” interpretations of “the scope of its own power” than one that would give Congress virtually unlimited power to impose any mandate it wants.

Second, Rosen suggests that “[f]or the Court to defer to the constitutional views of Congress, Congress must debate issues in constitutional (rather than political) terms” (pg. 10). In order to deserve deference, Congress needs to take the relevant constitutional issues seriously. In the individual mandate case, congressional Democrats notoriously demonstrated utter contempt for the constitutional issues, and plenty of ignorance to boot.

In fairness, their performance was no worse than that of the GOP when they controlled Congress during the Bush years. Far from generating serious constitutional deliberation in the legislative branch, the judiciary’s tendency to defer to Congress on federalism issues has had the opposite effect. Both parties give short shrift to constitutional limits on federal power because judicial deference has created a political culture in which almost anything goes. More careful judicial scrutiny of Congress’ handiwork might lead Congress to start taking the Constitution seriously again. That result should be welcomed by conservatives, libertarians, and liberals alike.

A nondeferential posture by the Court wouldn’t necessarily lead to the invalidation of the mandate. It merely means that the justices should give little weight to Congress’ “self-interested” interpretations of its own power and instead come to their own independent judgment on the constitutional issues at stake.

Ultimately, the Court should not decide the individual mandate case based on these sorts of nonlegal considerations. It is more important that its decision be right than that it be perceived as legitimate, nonpartisan, or conservative. But even on its own terms, the nonlegal case for upholding the mandate is not as impressive as its advocates claim.

UPDATE: Ed Whelan makes some relevant points here.

Asset forfeiture laws in many states allow the police to seize property that has supposedly been used to commit a crime, and then keep the proceeds for themselves. Often, these laws victimize people who have not been convicted of any crime, and indeed did not even know that their property might have been misused. They also often give the owner little or no opportunity to challenge the seizure, thereby flagrantly violating the Due Process Clause of the Fourteenth Amendment. Needless to say, such perverse incentives lead to many abuses, as documented in a 2010 report by the Institute for Justice.

Two excellent recent articles by George Will and Radley Balko describe some particularly egregious examples.

Here is Will:

Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife, Pat, are ensnared in a Kafkaesque nightmare unfolding in Orwellian language….

In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts, the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million. The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery….

Since 1994, about 30 motel customers have been arrested on drug-dealing charges. Even if those police figures are accurate — the police have a substantial monetary incentive to exaggerate — these 30 episodes involved less than 5/100ths of 1 percent of the 125,000 rooms Caswell has rented over those more than 6,700 days. Yet this is the government’s excuse for impoverishing the Caswells by seizing this property, which is their only significant source of income and all of their retirement security.

The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time. Civil forfeiture law treats citizens worse than criminals, requiring them to prove their innocence — to prove they did everything possible to prevent those rare crimes from occurring in a few of those rooms. What counts as possible remains vague. The Caswells voluntarily installed security cameras, they photocopy customers’ identifications and record their license plates, and they turn the information over to the police, who have never asked the Caswells to do more.

Balko describes an equally ridiculous case:

When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail….

“The police specifically told us to bring cash,” Greer says. “Not a cashier’s check or a credit card. They said cash.”

So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she’d be taking Joel Greer home. But she left without her money, or her son.

Instead jail officials called in the same Drug Task Force that arrested Greer. A drug-sniffing dog inspected the Greers’ cash, and about a half-hour later, Beverly Greer said, a police officer told her the dog had alerted to the presence of narcotics on the bills — and that the police department would be confiscating the bail money.

“I told them the money had just come from the bank,” Beverly Greer says. “We had just taken it out. If the money had drugs on it, then they should go seize all the money at the bank, too. I just don’t understand how they could do that….”

It took four months for Beverly Greer to get her family’s money back, and then only after attorney Andy Williams agreed to take their case. “The family produced the ATM receipts proving that had recently withdrawn the money,” Williams says. “Beverly Greer had documentation for her disability check and her tax return. Even then, the police tried to keep their money….”

Civil asset forfeiture is based on the premise that a piece of property — a car, a pile of cash, a house — can be guilty of a crime. Laws vary from state to state, but generally, law enforcement officials can seize property if they can show any connection between the property and illegal activity. It is then up to the owner of the property to prove in court that he owns it or earned it legitimately. It doesn’t require a property owner to actually be convicted of a crime. In fact, most people who lose property to civil asset forfeiture are never charged. …

Although Mrs. Greer was able to recover her money, authorities in Wisconsin and elsewhere continue to seize cash based on “alerts” by drug-sniffing dogs, that can be extremely misleading:

But even in the odd world of asset forfeiture, the seizure of bail money because of a drug-dog alert raises other concerns. In addition to increasing skepticism over the use of drug-sniffing dogs, studies have consistently shown that most U.S. currency contains traces of cocaine. In a 1994 ruling, for example, the U.S. 9th Circuit Court of Appeals cited studies showing that 75 percent of U.S. currency in Los Angeles included traces of narcotics. In 2009, researchers at the University of Massachusetts analyzed 234 bills collected from 18 cities, and found that 90 percent contained traces of cocaine….

Stephen Downing, a retired narcotics cop who served as assistant police chief in Los Angeles, says it isn’t surprising that a drug dog would alert to a pile of cash, since it usually has traces of drugs.

“I’d call these cases direct theft. They’re hijackings,” says Downing, who is now a member of Law Enforcement Against Prohibition, an organization of former police and prosecutors who advocate ending the drug war.

Downing says he recently consulted a medical marijuana activist in California who was told to bring his bail money in cash, despite the fact that state law allows payment with a cashier’s check, a registered check or a credit card. “It makes me wonder if this seizing of bail is a new idea getting shopped around in law enforcement circles.”

While the details of these abuses vary, the underlying problem is the same: an asset forfeiture system that allows law enforcement agencies to seize the property of the innocent and then keep the loot for themselves. This predictably leads to a situation where many take the property first and only ask questions later – if at all. As Balko points out, low-income property owners are particularly likely to be victimized, because they often lack the funds to hire a lawyer to contest the seizure and state law often does not pay for a public defender in these cases.

CONFLICT OF INTEREST WATCH: I have done pro bono work on other cases for the Institute for Justice, which is representing the property owner in the Tewksbury case.

UPDATE: I wrote this post before noticing Jonathan Adler’s earlier post on the same subject. I am leaving this post up because it goes into much more detail. Also, I disagree with Jonathan’s statement that this sort of abuse is “constitutional.” The Supreme Court ruled that it was in Bennis v. Michigan. But I think the dissenters in that case (a cross-ideological coalition of Justices Kennedy and Stevens) got it right.

Moreover, Bennis held merely that the seizure of innocent owners’ property does not automatically violate the Due Process Clause. It did not rule on the Due Process Clause issues that arise when the authorities seize the property with little or no evidence that it actually was used in a crime, or when they fail to give the owner a meaningful and prompt opportunity to challenge the seizure in court. In a 2009 case, the Supreme Court planned to address the latter issue, but ended up dismissing the case as moot.

UPDATE #2: In an update to his post, Jonathan clarifies that he too is sympathetic to many of the arguments made by the Bennis dissenters. For my part, I agree with him that not every morally objectionable forfeiture practice is necessarily unconstitutional.

In the recent case of Bowlby v. City of Aberdeen, the Fifth Circuit Court of Appeals just ruled that Fourteenth Amendment Due Process Clause property rights claims can be filed in federal court, despite the fact that the Supreme Court’s 1985 Williamson County decision bars many Takings Clause property rights claims from federal courts.

Robert Thomas of the Inverse Condemnation blog has a good summary of the relevant issues:

If you tried to explain the practical results of Williamson County’s ripeness requirements to someone not familiar in the last 30 years of regulatory takings jurisprudence, they would probably think you were joking….

[U]nder Williamson County, a property owner alleging a violation of her express federal constitutional right prohibiting takings without just compensation cannot bring that federal constitutional claim in a federal court. Instead, she is first required to present her state claim for compensation to a state court before she can even think of a federal action. And if she loses in state court, she will be deemed to have also litigated the federal claim, even if she expressly did not. Williamson County’s rationale was that there is no violation of the Fifth Amendment by a state or local government unless and until the property owner could both show that there was a taking, and that the state had denied compensation. So, you see, you have to lose your state takings claim to ripen your federal takings claim….

Williamson County gets particularly bizarre when courts extend it beyond the takings clause, since what thin justification exists for the rule is grounded in the language of the Fifth Amendment. Yet, the lower federal courts regularly apply it to Equal Protection and Due Process Claims, somehow transforming Williamson County from a limited takings requirement to a full-blown bar to the federal courthouse door for any plaintiff alleging a property-related claim….

Well, in Bowlby v. City of Aberdeen, No. 11-60279 (May 14, 2012), the U.S. Court of Appeals for the Fifth Circuit provided a different view, and injected a modicum of reality into the strange world of Williamson County. We won’t go too far into the case’s details, except to say that the plaintiff had a business permit, which the City summarily revoked. She sued in federal court for a taking and for procedural due process and equal protection violations, and the court promptly dismissed her complaint under Williamson County. She did not pursue an appeal of the takings dismissal, but asserted that Williamson County’s state litigation requirement of that case did not require dismissal of the due process or equal protection claim…..

The Fifth Circuit reversed, concluding that Williamson County is applicable only to takings claims, and not due process or equal protection [property rights] claims.

The Fifth Circuit is correct in ruling that there is precedent indicating that Takings Clause claims are treated differently from Due Process Clause and equal protection claims (see pp. 10-11 of the opinion). On the other hand, the logic of Williamson County is broad enough to cover not only other types of property rights cases, but nearly all constitutional rights claims against state and local governments. For example, if a state government tries to suppress an individual’s freedom of speech, we could require him to sue in state court because the government action might turn out to have been illegal under state law, or a violation of the state constitution. The same goes for any action by state or local government that might violate the federal constituion: there’s always a chance that a state court might strike it down as a violation of state law. Williamson County ruled that this possibility requires takings claims to be litigated in state court and then (in most cases) barred from federal court even if the property owner loses her state case. But the same “logic” readily applies to most other constitutional cases against state and local governments.

As I explained here, this arbitrary singling out of takings cases is one more example of the second class status of property rights in modern constitutional jurisprudence. In the 2005 San Remo case, four justices – including Justice Kennedy and Justice O’Connor, joined Chief Justice William Rehnquist’s concurring opinion arguing that the Court should reverse Williamson County and allow Takings Clause cases the same access to federal courts routinely extended to citizens asserting other violations of other constitutional rights:

The Court.. remark[s], that state courts are more familiar with the issues involved in local land-use and zoning regulations, and it suggests that this makes it proper to relegate federal takings claims to state court. Ante, at 23. But it is not apparent that any such expertise matches the type of historically grounded, federalism-based interests we found necessary to our decision in Fair Assessment. In any event, the Court has not explained why we should hand authority over federal takings claims to state courts, based simply on their relative familiarity with local land-use decisions and proceedings, while allowing plaintiffs to proceed directly to federal court in cases involving, for example, challenges to municipal land-use regulations based on the First Amendment….

Williamson County’s state-litigation rule has created some real anomalies, justifying our revisiting the issue. For example, our holding today ensures that litigants who go to state court to seek compensation will likely be unable later to assert their federal takings claims in federal court….

I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic.

Hopefully, the Supreme Court will eventually change its position on this issue, much as Rehnquist did.

UPDATE: Joshua Thompson of the Pacific Legal Foundation has more information about the case here. PLF filed an amicus brief supporting the property owner, which was extensively relied on by the Fifth Circuit in its decision.

UPDATE #2: Since property rights issues often split jurists along ideological lines, it is perhaps worth noting that all three judges on this panel were Democratic appointees.

UPDATE #3: I should briefly explain why it matters that these cases be able to go forward in federal court rather than state court. In many cases, state judges will protect federal constitutional rights just as well as federal courts do. In some situations, however, that will not be the case, either because the state judges are less competent than their federal counterparts or because they are less willing to uphold claims against the state government that they serve. The latter is particularly likely in cases where state judges (many of whom are elected) are part of the same political coalition as the state officials whose actions are being challenged as unconstitutional. As the Supreme Court explained in the famous case of Martin v. Hunter’s Lessee (1816):

It is… argued, that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own [federal] courts…. [A]dmitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wisdom, as those of the courts of the United States, (which we very cheerfully admit,) it does not aid the argument. It is manifest that the constitution has proceeded upon a theory of its own…. The constitution has presumed…. that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals.

Richmond Times-Dispatch columnist A. Barton Hinkle recently published this piece on a case of eminent domain abuse in Virginia:

As a general rule, progressives do not get worked up about property rights the way conservatives do. This is a mistake — as a case out of Norfolk shows.

To the progressive eye, property is bound up with materialism and wealth and greed and other yucky things. But property is also bound up with some things progressives hold dear. And even progressives were outraged when, in its 2005 Kelo decision, the Supreme Court said governments could take property from the poor and give to the rich.

That is what has been happening in Norfolk, where the city’s Redevelopment and Housing Authority has been using eminent domain to take dozens of pieces of private property for resale to a foundation run by Old Dominion University. The housing authority has been collecting commissions on the sales; the foundation has then been turning the property over to developers for their use as part of a swanky new University Village.

Among those properties is the building that houses Central Radio, whose story was detailed here back in May 2010. Some years ago, Norfolk offered to buy the property for a lowball price of $700,000 (more than a decade before, a developer had offered more than $1 million). Central Radio’s president, Bob Wilson, turned the city down. So the city slapped a spurious designation of “blighted” on the property and condemned it.

Norfolk couldn’t get away with that today. Virginia’s General Assembly has sharply curtailed such abusive use of eminent domain, precisely because of cases such as this one and others like it….

But the legislature’s changes to eminent-domain law included a grandfather clause, allowing Norfolk to proceed. Wilson is naturally cheesed off. He has vented his frustration by putting up on the side of his building a protest banner. (“50 years on this street,” it reads. “78 years in Norfolk. 100 workers. Threatened by eminent domain.” The words “eminent domain abuse” are surrounded by a red circle with a slash through it.)

But Norfolk officials apparently feel it is not enough to take away Wilson’s property. They also are trying to take away his right to free speech, by insisting that his banner violates the city’s sign ordinance….

Hinkle correctly notes that this is just one of several recent cases around the country in which local governments and influential developers not only engaged in dubious takings, but also tried to prevent property owners from speaking out against them. As he also points out, Virginia is one of a minority of states that has enacted strong post-Kelo eminent domain reform that will constrain abusive condemnations in the future. But as I documented in this article, in many other states reform still has a long way to go. Even in Virginia, eminent domain reform will not be fully secure in the long run until it has been incorporated into the state constitution, as well as statutory law.

Because blight and “economic development” takings tend to victimize the poor and politically weak for the benefit of the wealthy and politically powerful, they have generated widespread opposition on the left as well as the right. We will need greater cross-ideological cooperation on this issue to fully address the problem.

As some of our readers know, co-blogger Todd Zywicki and I are co-editors of the Supreme Court Economic Review, a peer-review publication that is one of the country’s top-rated law and economics journals. Our third co-editor is my colleague Josh Wright, who blogs at Truth on the Market.

We are pleased to announce that, thanks to our publisher, the University of Chicago Press, the SCER now has a brand-new 21st century submissions website. We welcome submissions by law and economics scholars, constitutional law scholars, and others writing in the fields of law and economics, constitutional theory, and related areas. You too might be able to publish in the world’s only academic journal edited by two Volokh Conspirators.

The new website has just gone online, so I apologize in advance for any minor glitches you may encounter.

Two recent studies find that state licensing regimes for small businesses impose severe burdens on consumers and entrepreneurs alike. The first, by the libertarian Institute for Justice, finds that licensing is ubiquitous for a wide range of professions, and that it often has little or no public interest justification:

License to Work details licensing requirements for 102 low- and moderate-income occupations in all 50 states and D.C. It is the first national study of licensing to focus on lower-income occupations and to measure the burdens licensing imposes on aspiring workers….

All of the 102 occupations studied in License to Work are licensed in at least one state. On average, these government-mandated licenses force aspiring workers to spend nine months in education or training, pass one exam and pay more than $200 in fees. One third of the licenses take more than one year to earn. At least one exam is required for 79 of the occupations….

Noted licensure expert Morris Kleiner found that in the 1950s, only one in 20 U.S. workers needed government permission to pursue their chosen occupation. Today, it is closer to one in three. Yet research to date provides little evidence that licensing protects public health and safety or improves products and services. Instead, it increases consumer costs and reduces opportunities for workers….

the difficulty of entering an occupation often has little to do with the health or safety risk it poses. Of the 102 occupations studied, the most difficult to enter is interior designer, a harmless occupation licensed in only three states and D.C. By contrast, EMTs hold lives in their hands, yet 66 other occupations face greater average licensure burdens, including barbers and cosmetologists, manicurists and a host of contractor designations. States consider an average of 33 days of training and two exams enough preparation for EMTs, but demand 10 times the training—372 days, on average—for cosmetologists. “The data cast serious doubt on the need for such high barriers, or any barriers, to many occupations,” said Lisa Knepper, IJ director of strategic research and report co-author. “Unnecessary and needlessly high licensing hurdles don’t protect public health and safety—they protect those who already have licenses from competition, keeping newcomers out and prices high.”

The second new study – by Thumbtack.com and the Kauffman Foundation reinforces some of IJ’s conclusions. It consists of a nationwide survey of several thousand small business owners, and finds that, in their view, the ease of obtaining a license is the biggest public policy determinant of a state’s level of friendliness to small businesses – far more important even than tax rates:

Although taxes are a dominant topic in many discussions of a location’s attractiveness to business, our analysis indicates that small businesses tend to care more deeply about the friendliness of a region’s licensing regime by a factor of nearly two. Similarly, being subject to special regulatory requirements had a negative effect on overall small business friendliness, and among those small businesses subject to special regulations, the ease of complying with these requirements was by far the most important factor.

These results are not entirely surprising. Licensing regulations are often “captured” by interest groups seeking to keep out their competitors. Most voters are unaware of these laws and often lack the knowledge needed to assess their quality even when they do happen to know about them. As a result, licensing regimes are often heavily influenced by lobbying from politically connected businesses. Both consumers and potential new entrants into the market get the short end of the regulatory stick. It’s yet another example of the harm caused by political ignorance.

CONFLICT OF INTEREST WATCH: I have done pro bono work for the Institute for Justice on unrelated projects.

UPDATE: Economist Tim Taylor has additional commentary here.

UPDATE #2: I have revised this post slightly to eliminate some minor stylistic flaws.

President Obama’s recent announcement that he supports gay marriage is yet another addition to the short but distinguished list of issues on which the President and I agree.

Previous entries include creating a playoff system for college football, allowing gays and lesbians to serve openly in the military, ending the home mortgage interest deduction for high-income taxpayers (though I would go further and abolish the deduction for everyone), the president’s authority to forego defending federal statutes he believes to be unconstitutional, the legality of the targeted killing of Osama Bin Laden, the end of the NBA lockout, and that the Obama health care plan’s individual mandate is not a tax. Based on the above, it seems that the biggest areas of overlap between our worldviews are gay rights and sports. But the list is not completely exhaustive, since there are a few other issues where we also agree, but I don’t blog about them because they are too far outside my areas of interest and expertise.

UPDATE: A somewhat overwrought critique of this post takes me to task for supposedly being unaware of numerous largely noncontroversial things that Obama and I agree on, such as that genocide is evil or that Hitler and Stalin were great villains. I’m well aware of these areas of agreement, thank you. But this post was about issues on which Obama and I agree, which means questions that are controversial in modern American politics. The fact that Obama and I agree on many things on which there is an overwhelming national consensus isn’t relevant to that. We also agree that the Earth is round, and that the Sun rises in the East.

The New York Times has an article describing how the TransCanada corporation is using eminent domain to forcibly acquire property to build the Keystone oil pipeline:

When the TransCanada men first came, Julia Trigg Crawford said, they were polite. They offered money. Seven thousand dollars to let the Keystone XL pipeline cross her family’s 600-acre farm on its way from the Alberta tar sands to the refineries on the Gulf Coast….

Ms. Crawford, 52, who serves as the farm’s manager, called the rest of the family. They agreed to sign. “We thought that at least if we signed we’d have some say in what happened,” she said.

They called the TransCanada representative. “He told us that if we could come up with a contract that worked for both parties, they wouldn’t condemn the land,” Ms. Crawford said…..

“I fully expected them to counter,” she said. “There were about five or six things we wanted, and we would have been happy to take one or two.”

Then, she said, TransCanada “went full radio silence.” The Crawfords never heard back from them — until October, when they got a letter saying their land had been condemned and a lease awarded to TransCanada.

But as the Crawfords discovered, when voluntary compensation agreements are not reached, Texas law allows certain private pipeline companies to use the right of eminent domain to force landowners to let pipelines through. This was true even for TransCanada, which has yet to get State Department permission to bring the Keystone XL across the Alberta border.

The article notes TransCanada’s claim that it has acquired the overwhelming majority of the property they needed for the pipeline through voluntary land sales. This may be true, but it is misleading. Like the Crawfords, these owners agreed to sell their land under the threat of eminent domain if they refused. Some might well have refused to sell for the price offered by the firm if eminent domain were off the table. The voluntariness of land sales undertaken in the shadow of threats of condemnation is dubious at best.

Back in 2006, co-blogger Jonathan Adler and I published an article explaining the environmental dangers of allowing the use of eminent domain for private economic development projects, as the Supreme Court ruled in the Kelo case. At the time, some environmentalists pooh-pooed the article, and one group even declared our article the environmental “outrage of the month” (it must have been a slow month for actual pollution). Ironically, as Jonathan explained here, several environmental groups are now trying to use post-Kelo reform laws restricting economic development takings to block the Keystone takings.

Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.

Even if Kelo had been decided the other way, some pipeline takings might still be constitutional. The Constitution permits takings for “public use,” and even under the traditional definition of public use advocated by Kelo’s critics, condemnations for public utilities or common carriers that the general population has a legal right of access to are often permissible. However, pipeline takings would be subject to tougher constitutional constraints than under Kelo, and the government would at least have to prove that the pipelines in question really are public utilities or common carriers open to the general public.

Regardless, as Jonathan points out, the controversy over Keystone has led “some environmentalists… to recognize that allowing the government to seize private property for the purpose of encouraging private economic development can facilitate environmentally undesirable projects.”

UPDATE: In a response to this post, Mark Kleiman claims that Jonathan Adler and I “don’t seem interested in the fact that none of their friends on the side of inalienable property rights seems to have any problem with the use of eminent domain to build Keystone (any more than they objected to George W. Bush’s use of it to enrich himself and his business partners in the Texas Rangers by seizing private property to build, not merely a stadium, but a shopping mall).” Actually, people who are genuinely “on the side of inalienable property rights” are likely to be opposed to the use of eminent domain for this project. But if Kleiman means to refer to the GOP, I thought the fact that most Republicans support the pipeline is too well-known to require dwelling on. By contrast, (some) environmentalists’ change of heart on eminent domain is a development that is much less widely appreciated.

I have, however, criticized eminent domain abuses advocated by Republicans in many previous posts, such as here and here. In this 2006 post, I noted the inadequacy of the Bush administration’s response to Kelo. Few if any opponents of Kelo approve of the use of eminent domain to build sports stadiums. George W. Bush’s exploitation of it, of course, occurred many years before Kelo thrust the issue of eminent domain into the limelight, and few nonexperts remember it today.

Big-name literary scholar Stanley Fish has an interesting column on The Hunger Games, the popular series of science fiction novels by Suzanne Collins which has recently been made into a highly successful movie:

A couple of weeks ago my daughter visited from California. She brought with her the first volume of Suzanne Collins’s “The Hunger Games.” She read it in short order and drove to the local Barnes & Noble to get the other two. She finished them in a day, and then passed all three on to me. I devoured them and passed them on to my wife, who also read them in record time.

What accounts for three overeducated adults being so caught up in the story of a teenage girl — Katniss Everdeen — who lives in a dystopian future ruled and controlled by the decadent and cruel denizens of “The Capitol”?

Many have commented on the excellence of the pacing (you’re always on the hook) and on the inventiveness with which Collins devises the obstacles — both animate and inanimate, and a few things in between — that challenge Katniss and her fellow contestants as they play a gladiatorial, televised game whose point is to defeat one’s opponents by killing them and so be the last person standing.

But the technical skills Collins displays are only a part of the explanation of the novels’ power. The other part is the thematic obsession hinted at by the title: just what is it that the characters, and by extension the readers, hunger for? On the literal level the answer is obvious. Kept at a near-starvation level by their rulers, the inhabitants of the nation of Panem (bread) hunger for food, and one of Katniss’s virtues is that as an expert archer she can provide it.

Food, however, is a metaphor in the trilogy for another kind of sustenance, the sustenance provided by an inner conviction of one’s own worth and integrity….

One of the tributes names that as the goal he desires more than survival. Peeta Mellark, in love with Katniss since the moment he laid eyes on her (the moment when he gave her bread), says to her, “I want to die as myself … I don’t want them to change me in there.”

Fish’s emphasis on the characters’ inner struggle for “authenticity” contrasts with the more politically oriented interpretations of the series developed by other commentators. I previously blogged about political and moral themes in The Hunger Games here, here, and here. I also discussed the subject in a recent podcast for the Institute for Humane Studies.

The New York Times has an interesting article on the political attitudes of New York City’s Russian immigrant community. Unlike most New Yorkers and especially most New York Jews (the Russian immigrant community is overwhelmingly Jewish), they tend to support the GOP over the Democrats:

To many Russian and Ukrainian immigrants, the cornucopia in the shops along Brighton Beach Avenue — pyramids of oranges, heaps of Kirby cucumbers, bushels of tomatoes with their vines still attached and a variety of fish, sausages and pastries — seems like an exuberant rebuke of the meager produce that was available to them when they lived in the Soviet Union.

This contrast helps explain a striking political anomaly: immigrants from the former Soviet Union are far more apt to vote for Republicans than are most New Yorkers, who often drink in Democratic Party allegiance with their mothers’ milk and are four times as likely to register as Democrats than as Republicans….

One reason these voters tend to support Republicans is that they see them as more ardent warriors against the kind of big-government, business-stifling programs that soured their lives in the Soviet Union. Their conservative stances on issues like taxes and Israel seem to outweigh their more liberal views on social issues like abortion.

Tatiana Varzar came to the United States in 1979, at age 21, from the Ukrainian seaport of Odessa. She worked as a manicurist and then opened a small restaurant on the boardwalk that grew into Tatiana Restaurant, a spacious magnet for foodies who like a whiff of salt air and a sea view with their pirogen…..

“I am what I am because of capitalism,” Ms. Varzar said, “and Republicans are more capitalistic.”

Obviously, this article is not the first to point out the stark contrast between Russian Jewish political attitudes and those of most native-born Jews. I blogged about the phenomenon here, here, and here, including links to previous commentary on the issue by others.

The Times article does, however, provide a good summary of the major reasons why Russian Jewish voters support the GOP: a combination of a preference for free markets and a relatively hawkish foreign policy. The Times is also correct to point out that Russian Jewish immigrants tend to vote for the GOP despite the fact that most of them are socially liberal (they tend to be highly secular, pro-choice, and generally left of center on most social issues, with the important exception of gay rights, where many immigrants brought with them the homophobia that is rampant in Russia itself). For most Russian immigrants, social issues are not as salient as economics and foreign policy. In many of these respects, as the Times notes, Russian immigrants’ political preferences are similar to those of immigrants from other communist and former communist nations, such as Cuba and Vietnam.

Obviously, as with voters from other groups, Russian immigrants’ attitudes are affected by political ignorance. Many may be unaware of the massive extent to which the GOP has sometimes deviated from support for free markets, especially in the Bush years. At least in my experience, many of them also overestimate the dovishness of the Democratic Party (though I hasten to add that I haven’t seen scientific polling data on this). That said, there is little doubt that, at least in New York – which has one of the most economically liberal Democratic parties in the nation – the GOP is significantly less economically statist than the Democrats.

Because New York is so overwhelmingly Democratic, the GOP leanings of Russian voters make little difference in statewide elections. They do, however, as the Times points out, sometimes make the difference in local and congressional races, which are more closely contested.

For now, the political clout of the Russian Jewish community is severely limited by its small numbers and by its concentration in areas (Boston, New York, Silicon Valley) that are overwhelmingly Democratic. Most Russian immigrants also lack the wealth and political connections that are more common among native-born Jews (though there are some striking exceptions, such as Google founder Sergey Brin). However, as Russian Jews continue to grow as a proportion of the total Jewish population and continue to increase their income and influence, they could have an effect on internal Jewish community politics. There are now some 700,000 Russian Jewish immigrants in the US, about 12% of the total Jewish population. And that percentage may well grow, if only because Russian immigration is continuing (though at a reduced rate), while the native-born Jewish population has a low birth rate.

Russian Jews have also begun to have an impact in the academic and intellectual worlds. Harvard economist Andrei Shleifer and the VC’s own Eugene Volokh are among the best known of a growing contingent of Russian Jewish immigrant academics who have had a significant impact on their fields. In sharp contrast to most other academics, Russian immigrant scholars in the humanities and social sciences are overwhelmingly conservative or libertarian (more commonly the latter), perhaps to an even greater extent than the community as a whole.

UPDATE: I suppose I should add that I do not mean to suggest that most Russian Jewish immigrants are consistent economic libertarians. Very few voters are rigorously consistent adherents to any ideology, and Russian Jews are no exception. They are, however, on average more sympathetic to free markets than the average voter – especially in liberal areas such as New York City.

UPDATE #2: Neither the article nor I distinguish rigorously between former Soviet Jews from Ukraine and those from Russia, although obviously these are now two different countries, and Ukrainian nationalists are not fond of Russia. Most Ukrainian Jewish immigrants are Russian-speakers and identify far more with Russian language and culture than Ukrainian. However, it’s worth noting that non-Jewish Ukrainian immigrants (like my wife’s mother’s family) who arrived since the rise of communism also tend towards the political right.

In this interesting recent op ed in Canada’s National Post , my George Mason colleague Frank Buckley argues that parliamentary systems of government are less likely to become dysfunctional than separation of powers systems such as that of the United States:

Before Standard and Poor’s downgraded U.S. public debt, Barack Obama mused that the American system of separation of powers might not be all that it is cracked up to be. It results in gridlock, and had raised the specter that Congress would fail to raise the debt ceiling. “We did not have a AAA political system to match our AAA credit rating,” Obama noted….

By contrast, the Canadian system of government has never seemed more attractive, if one judges these things by their results. Notwithstanding its generous social-welfare safety net, Canada is ranked as economically more free than the United States by the conservatives at the Heritage Foundation in Washington, which puts Canada in sixth, and the U.S. in 10th place, in the group’s most recent international survey. On per capita government spending, the two countries are tied, and on corporate taxes Canada is way ahead. On public debt levels, it’s no contest….

Getting legislation passed or repealed in America is like waiting for three cherries to line up in a Las Vegas slot machine. Absent a supermajority in Congress to override a presidential veto, one needs the simultaneous concurrence of the president, Senate and House.

In a parliamentary system, however, one needs only one cherry. In Canada, neither the governor-general nor the senate has a veto power. All that matters is the House of Commons, dominated by the prime minister’s party.

An American separation of powers might nevertheless be thought better able to screen off bad laws, which might more easily be enacted in a parliamentary regime. The flip side is that bad laws, once enacted, can more easily be reversed when a government doesn’t face the gridlock of the separation of powers.

So which is more valuable: Pre-enactment screening or ex post reversibility? I’d suggest the latter, for one important kind of legislation: “Experience laws,” whose effects cannot be judged without the benefit of hindsight. Then, reversibility trumps ex ante screening — not that there’s much of the latter in Washington. And when you get down to it, just about all laws are experience laws.

Frank makes a good case. But I remain unpersuaded. It is indeed true that Canada’s government has performed better than the United States over the last decade, which has enabled Canada to (slightly) surpass the US on the Heritage Foundation’s measure of economic freedom in recent years, and to establish a much better fiscal position. On the other hand, that same Heritage rating had the US ahead of Canada for many years before the late 2000s (as was also true in the rival Cato/Fraser Institute index). During much of that period, Canada also had much worse fiscal problems, higher taxes, and higher per capita government spending than the United States. And obviously the US had a separation of powers system and Canada a parliamentary system in those days too.

The recent reversal is a result of Canada’s impressive economic reforms since 1996 and the massive growth of American government under George W. Bush and Barack Obama. That growth did not occur because of “gridlock,” but because Congress and the president successfully enacted major new laws greatly increasing spending and regulation. It would be dangerous to generalize from this relatively brief period, or even from the US and Canadian experience as a whole. Studies that compare the records of many countries, such as Persson and Tabellini’s Economic Effects of Constitutions show that, controlling for other variables, presidential separation of powers systems have smaller public sectors than parliamentary systems.

Frank’s argument that post-enactment reversal is more valuable than preenactment screening in preventing bad laws overlooks the problem of institutionalization. Once a bad law is enacted, interest group pressures and inertia often make it difficult to repeal – even in a parliamentary system. Moreover, widespread political ignorance ensures that voters often don’t even realize that a law is having bad effects or even that it exists at all. That is one of the reasons why so many European governments are experiencing severe fiscal crises caused by overspending – despite the fact that nearly all of them have parliamentary governments. Even if most “bad” laws are “experience laws,” it is also true that many such laws have been tried elsewhere previously. Opponents can rely on that experience without having to first try out the bad law themselves.

Frank also contends that parliamentary systems will distribute government spending more equitably than separation of powers systems:

A party leader who seeks support across the country must have the interest of the country as a whole in mind. If he concentrates government spending in one region only, he will lose support in other regions. That’s why strong a prime minister and a Parliament of nobodies better serves the country than the separation of powers and earmark-seeking Congressmen, like the late John Murtha of Pennsylvania (of the John Murtha Airport, John Murtha Center, etc.).

Porkbarrel spending for local projects is a genuine problem in the US. But the same is true in many parliamentary systems. In the latter, parties often include narrow interest groups who get compensated for their support with government spending grants. It’s far from clear that the problem of fiscal favoritism for narrow interest groups or particular regions is less severe under a parliamentary system than in the US. Western Canadians have long complained about the concentration of federal grants in Quebec and the Atlantic provinces.

This is not to suggest that the US system is ideal or that all other nations should copy it. There are a variety of reasons why a nation might prefer a parliamentary system to presidentialism. For example, a powerful presidency that concentrates executive authority in one person’s hands might be a bad idea for a nation with deep ethnic divisions or one with a long tradition of authoritarianism. Obviously, people who want high levels of government spending and regulation also have good reason to prefer parliamentary systems – a point made by many American liberals going back to Woodrow Wilson in the late 19th century. However, the available evidence suggests that separation of powers is an important constraint on the growth of government and that parliamentary systems are not, on average, better at preventing fiscal crises.

In general, I am a big fan of the work of columnist Jonathan Rauch. Unfortunately, his recent column on the individual mandate case is not one of his better pieces. The problem is not that he comes down on what I think is the wrong side of the issue, but that some of his points are factually inaccurate, while others ignore major counterarguments. Rauch claims that “no one disputes that the so-called mandate would be constitutional if you relabeled it as a tax,” that the case against the mandate is inconsistent with “conservatives’” previous opposition to judicial “activism,” and that, if the Court strikes down the mandate it will lead to socialized medicine.

Rauch’s tax point is factually wrong. The opponents of the mandate have consistently argued that the mandate is a penalty, not a tax, for reasons that go beyond labeling. I summarize that argument here:

As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,” while a penalty is “an exaction imposed by statute as punishment for an unlawful act” or – as in the case of the individual mandate – an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.

In September 2009, President Obama himself noted that “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right. If the mandate qualifies as a tax merely because it punishes violators with a fine, then Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse. It could use this power to force citizens to buy virtually any product, including broccoli, General Motors cars, or anything else.

Even if the individual mandate does somehow qualify as a tax, it is not one of the types of taxes that Congress is authorized to impose….

[T]he mandate is not a tariff, impost, income tax, or excise tax [;] it is either [an unconstitutional] direct tax or no tax at all.

Paul Clement makes the same points in greater detail in his Supreme Court brief for the plaintiffs (pp. 51-64). These are also some of the reasons why, at the oral argument, even the liberal justices expressed great skepticism about the federal government’s argument that the mandate is a tax.

The issue of labeling, however, is not just a minor technical detail. If, as many defenders of the mandate claim, the only constraint on the tax power is political accountability, then accurate labeling is important to ensuring that political accountability is effectively imposed. Had the supporters of the mandate labeled it a tax from the start, it very likely would not have passed.

Rauch also claims that the case against the mandate is inconsistent with conservatives’ previous views on judicial review. Some conservatives have opportunistically switched sides on the mandate, as also have many liberals. However, many of the conservative and libertarian opponents of the mandate have been arguing for decades that we need strong judicial enforcement of limits on federal power. Since the constitutional arguments in favor of the mandate would give Congress virtually unlimited power, it would have been inconsistent with our previously expressed views on the importance of limits if we didn’t argue that the mandate is unconstitutional.

Longstanding conservative support for judicially enforced limits on federal power is in some tension with loose conservative rhetoric about “judicial activism,” which is one reason why I have been critical of such rhetoric. However, for most on the right, “judicial activism” is not coextensive with any judicial overruling of statutes, but rather with departures from the text and original meaning of the Constitution. And there is certainly a strong case against the mandate based on the latter.

Finally, Rauch argues that a decision striking down the mandate will galvanize liberals and pave the way for national health insurance. This claim ignores the existence of many other policy options that could address the problems the mandate is supposed to solve, including many that are more market-friendly than either the mandate or nationalization. That may be why very few liberal supporters of nationalization actually want the mandate to be repealed. It’s certainly possible that a decision against the mandate will anger liberals. But it’s doubtful they will be able to make much political hay out of a decision invalidating a law that the vast majority of the public opposes and actually wants the Court to strike down.

UPDATE: I have chosen to ignore Rauch’s rhetorical pretense that he is channeling the views that the late Senator Ted Kennedy would hold if he were still alive. I think this is just a clever device to express Rauch’s own views on the case. However, I would be happy to post a correction if it turns out that Rauch really doesn’t agree with the claims made in the piece.

UPDATE #2: Jonathan Rauch has asked me to post the following response, which I am happy to do:

My phrase about the difference between a tax and a mandate being merely a question of labeling may have been too quick and dirty (excuse: I had only 700 words), but in the next sentence I chose my words carefully: “Conservatives insist the mandate is unconstitutional under the Commerce Clause, but they acknowledge that an effectively identical policy fits comfortably within the scope of Congress’s taxing power.” I believe this is accurate, and my recollection is that plaintiffs acknowledged the point in a colloquy with Justice Sotomayor.

Ilya’s phrase “ensuring that political accountability is effectively imposed,” being rendered in the passive voice, elides the important question of _who_ should be in the business of ensuring political accountability. Do conservatives really want to put courts in the business of nannying politicians, and constitutionalizing the results? If so, the Supreme Court is going to be spending a lot of time drawing congressional districts. My own view is that enforcing political hygiene (which really means enforcing someone’s preferences regarding political hygiene) is not consistent with judicial modesty and is not a wise role for courts to play.

There is indeed a jurisprudential case against the mandate. But I’d distinguish between jurisprudential or constitutional doctrine and judicial style. If someone believes in judicial modesty (and I grant that not all conservatives do—though the vast majority have claimed to), then that implies a style of judging which puts a thumb on the scales against overturning properly enacted statutes. Yes, even a restrained court could and arguably should overturn a statute that finds no home in the constitution as originally conceived and subsequently interpreted. But this is a case where the parties generally agree that, programatically, what Congress is doing with the mandate fits quite comfortably within the taxing power. (See above.)

That’s why I don’t think striking down the mandate is consistent with a judicial style of restraint. If the plaintiffs win and conservatives cheer, I think they’ll have planted their flag on the libertarian/conservative-interventionist side of things, and, for better and worse, we’ll be in for a battle of the activist courts.

Regarding the political fallout…Ilya may be right. But three words (or is it two?) inform my view that conservatives are playing with fire here: _Roe v. Wade_. Based on public opinion in 1973, I doubt many people foresaw a two-generation backlash that redefined the political landscape. Stay tuned.

I appreciate Jonathan’s response, and I certainly understand that points sometimes get oversimplified in a short op ed. Nonetheless, the bottom line here is that it is simply not true that either the anti-mandate plaintiffs or “conservative” opponents of the mandate in general agree that “an effectively identical policy” could be enacted under the Tax Clause. This is made very clear in the plaintiffs’ brief linked above. It is also made clear in Paul Clement’s exchange with Justice Sotomayor at the oral argument (pp. 59-60), where he emphasized that any tax imposed on people who fail to purchase health insurance would be an unconstitutional “direct tax,” because “the one thing I think the Framers would have clearly identified as a direct tax is a tax on not having something.” That doesn’t sound like a man who admits that Congress could use the tax power to enact an “effectively identical policy.”

The Court’s conservative justices has previously ruled that maintaining clarity for the sake of political accountability one reason for judicial enforcement of limits on congressional power (e.g. – in New York v. United States). There would be nothing new in applying the same idea in the mandate case.

It is perhaps true that people who believe in a very strong presumption of constitutionality for legislation might find it difficult to advocate striking down the mandate. But few if any of the leading opponents of the mandate have ever advocated such a super-strong presumption. Certainly not those of us who have argued for many years that the courts should strongly enforce constitutional limits on federal power. Moreover, even those conservatives who do believe in a strong presumption could reasonably conclude that that presumption is overcome if all the arguments in favor of the mandate lead to virtually unlimited federal power.

Finally, Jonathan’s analogy with Roe v. Wade overlooks the reality that the mandate is much more unpopular than the pro-life cause (polls show that some 40-45% of Americans describe themselves as “pro-life” on abortion and some 50-60% believe that abortion should be either illegal or legal “only in a few circumstances”), and that few of its supporters feel as strongly about it as pro-lifers do about abortion. Regardless, it is pretty clear that most pro-choicers and most liberals generally remain satisfied with the results of Roe, despite the conservative backlash it has generated. Very few liberals want Roe to be overruled. Conservatives are likely to be at least equally happy with the overall effects of a decision striking down the mandate. I myself am pro-choice, and I think that Roe has been a net benefit for our side of the issue; though I am very skeptical of the decision’s legal reasoning.

UPDATE #3: Jonathan has asked me to post this additional response:

Thanks again to Ilya. Our arguments are on the table, so I’ll confine this reply to a point regarding the factual record and my interpretation thereof.

Justice Sotomayor: “Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us?”

Mr. Clement: “Well, I think it would depend a little bit on how it was formulated, but my concern would be — the constitutional concern would be that it would just be a disguised impermissible direct tax.”

Prodded by Ilya, I guess I could read Clement as saying that all tax credits and tax incentives—and there are more of them than anyone could count—are constititutionally suspect. I get a tax credit if I buy a Chevy Volt. That’s functionally identical to paying higher taxes if I don’t buy a Chevy Volt. Impermissible direct tax?

It just never occurred to me that Clement and the plaintiffs might be arguing that tax credits and exemptions are perforce constitutionally suspect, because that would be a breathtaking claim. It would potentially require the Supreme Court to examine and rewrite the whole tax code. I think it’s more reasonable and realistic to interpret the plaintiffs as acknowledging that some (many?) forms of tax incentive are constitutional, and that the tax credit suggested by Justice S could be structured so as to be among them.

If I did misread Clement, then, alas, the plaintiffs’ position is even more radical than I realized.

I think Clement’s position is clear from his later statement in the same exchange with Sotomayor that any “tax on not having something” is an unconstitutional “direct tax.” Jonathan is wrong, however, to assume that that implies that all tax credits are unconstitutional. A tax credit is a deduction from some preexisting tax, such as an income tax. If the preexisting tax is constitutional, the same goes for most tax credits that merely serve to lower it for some people. By contrast, the individual mandate is a free-standing fine imposed on people who fail to purchase health insurance. If it were a true tax credit for purchasing health insurance (one that goes beyond previous tax deductions for employer-provided health insurance), it would cost the federal government billions of dollars in income tax revenue – including, presumably, from people who could claim the credit because they already have health insurance. Congress could potentially enact an across-the-board income tax increase to offset the lost revenue. But that too would be very different from the policy that it actually chose, and would have been a political non-starter to boot.

UPDATE #4: I have slightly modified the last update in order to make it clearer.

George Will recently published a good Washington Post column on the ill-conceived People’s Rights Amendment, which Eugene Volokh and I blogged about here and here. Will points out several serious flaws in the proposal, and builds on some of the points we made:

Controversies can be wonderfully clarified when people follow the logic of illogical premises to perverse conclusions….

Joined by House Minority Leader Nancy Pelosi (D-Calif.), 26 other Democrats and one Republican, [Rep. James McGovern] proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say that most campaign-finance “reforms” are incompatible with the First Amendment…

His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations…

McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” — have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.

Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of

worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.

One can argue for the constitutionality of campaign finance regulations on several grounds. But doing so on the basis that people organized into corporate entities have no constitutional rights does indeed lead us down the dangerous path dramatically illustrated by the Peoples’ Rights Amendment.

“Bleeding heart libertarian” political philosophers Kevin Vallier and Matt Zwolinski have written responses to my post expressing some reservations about some BHLers embrace of the idea of “social justice.” They also comment on critics like David Friedman, Bryan Caplan, Mike Rappaport, and Todd Seavey, who have expressed related concerns. Both Vallier and Zwolinski make some good points. But I don’t either of them really addresses the issues I and some of the others raise.

Vallier attempts to answer the criticism that the BHL conception of “social justice” is vague and unclear by providing a definition of the concept:

How does the term “social” modify the term “justice” such that we are left with an important and illuminating concept that is a kind of justice that libertarians should accept? I’m going to give a Rawlsian answer to this question by holding that social justice is justice with regard to the arrangement of a society’s basic structure… Rawls defines a society’s basic structure as follows:

By the basic structure I mean a society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next….

[A] basic structure… rests on certain principles and shared ideas that are the subject of moral and political evaluation.

I certainly agree that a society’s “basic structure” is subject to moral evaluation and that an unjust basic structure should be rejected (at least if superior alternatives are available). However, virtually all political theorists accept the same idea, including libertarians who reject the idea of “social justice,” such as F.A. Hayek (who devoted much of his scholarship to trying to figure out what a more just basic structure of of society should look like). If social justice is simply used to denote the idea that the basic structure of society should be just in some general sense, then it’s not a very useful term because almost every political philosophy turns out to be committed to it. Nazis, communists, socialists, libertarians, liberals, and conservatives all agree that society should have a just basic structure. Where they differ is on the question of which basic structure is actually the most just, and on the criteria for assessing that question.

This definition of social justice also does not conform to the most widely accepted uses of “social justice” in contemporary discourse, which usually have to do with alleviating poverty and promoting economic equality. That said, I recognize that this may be a case where some academic political philosophers use a term in a different sense from that used by laypeople and scholars in other fields.

Zwolinski interprets me and some of the other critics as advocating utilitarianism and puts forward various standard philosophical arguments against utilitarianism. I agree with many of these arguments. However, they only count against a theory that holds that utilitarianism is the only standard by which the morality of our actions should be judged. That is not my view. I reject both absolute utilitarianism and absolute nonutilitarian rights theories. Utilitarian considerations should serve as a constraint on rights claims and vice versa. For example, we should not endorse an absolutist theory of rights that holds that we can never restrict freedom of speech even if doing so is the only way to keep a totalitarian regime from coming to power and slaughtering millions. On the other hand, we also should not embrace an absolute utilitarianism under which we would have to let sadists torture innocent children so long as the evidence showed that pleasure of the torturers was greater than the pain suffered by their victims.

At what point should rights be sacrificed for utility or vice versa? If I had an air-tight answer to that question, I would be a great political philosopher myself. Sadly, I don’t. But even though I don’t have a good theory for handling difficult borderline cases, I think it’s still easy to recognize that we shouldn’t sacrifice huge amounts of utility for minor rights protections, and neither should we do the opposite. Thus, we should not allow civilization to be destroyed by an asteroid strike, even if avoiding this fate requires some infringement on property rights. Similarly, we also shouldn’t let “utility monsters” gobble up small children. In my view, genuinely difficult tradeoffs between utility and rights

For reasons outlined by Mike Rappaport here and here, and earlier by David Friedman, I think utilitarianism also does a better job than “social justice” in explaining why libertarians (and others) should be concerned about poverty and economic well-being. One can recognize that without being committed to the idea that utility is the one true moral value that trumps all others.

Most of the commentary on my latest post advocating the transformation of May Day into Victims of Communism Day has been positive. A few people, however, have argued that some other date is more appropriate than May 1. Some claim that it is wrong to use May Day because of its former status as a labor union holiday in pre-communist days. I responded to this argument in a update to my original post:

I don’t deny that May Day has a pre-communist history. However, for many decades it was and still is the major holiday of international communism. To try to disssociate it from that history is much like trying to separate the swastika from the Nazis on the grounds that it was once an ancient religious symbol unrelated to Nazism. Many of those who celebrate May Day since the fall of communism in the USSR are either communists themselves or radical leftists sympathetic to communism. Not all are, of course. But the communist connection is is clear and recognized around the world. No other date – including the anniversary of the Nazi-Soviet Pact is so clearly symbolic of communism as an international phenomenon…. Nations that wish to commemorate “workers’ rights” should do so on some date not associated with brutal totalitarian dictatorships, as the US and Canada have done by creating a separate Labor Day.

In my very first post on the subject, I noted the possibility of using November 7, the anniversary of the communist seizure of power in Russia. However, I also noted that this alternative is inferior to to May Day because it focuses primarily on one communist nation, whereas in reality the crimes of communism were international in scope. Bad as they were, communist atrocities in the USSR were outstripped in magnitude by those in China, and by Cambodia in terms of the proportion of the population murdered. North Korea probably takes the prize as the most thoroughly oppressive communist regime, controlling even more aspects of its people’s lives than the USSR under Stalin.

A few correspondents have suggested expanding “Black Ribbon Day,” the August 23 anniversary of the 1939 Nazi-Soviet Pact, which has been endorsed by Canada and the European Parliament. Potentially, this day of commemoration could be expanded to cover all communist crimes, not just those directly associated with the Nazi-Soviet Pact. Unfortunately, however, August 23 suffers from the same shortcoming as November 7. It too focuses exclusively on the crimes of just one communist regime. In addition, Black Ribbon Day understandably focuses on the crimes of both the Nazis and the USSR. We already have a memorial day devoted to the Holocaust, and the victims of communism deserve a day of their own.

In sum, I still think that May 1 is the best possible date for Victims of Communism Day. No other day is both clearly associated with communism and at the same time not primarily associated with one particular communist dictatorship. That said, the best should not be the enemy of the good. It is more important that we have a widely recognized Victims of Communism Day than that we have it on the best possible date for that purpose. If a broad consensus develops in favor of August 23, November 7, or some other date, I will certainly support it.

UPDATE: Roderick Long responds here:

I strongly disagree with the suggestion by Jason [Brennan], Ilya, and others to rename May Day “Victims of Communism” Day.

The fact that Communist regimes have attempted to co-opt May Day is no reason to imitate them in a second co-opting attempt. May Day not only originally was, but still is, primarily a celebration of workers’s movements generally, not of the butchers of Kronstadt. The holiday is commemorated all over the world; it is not now and never has been mainly a Communist regime holiday…

Jacob [Levy] adds, rightly, that the war on May Day is “pointlessly antagonistic toward social democrats”; but I would just add to this that it’s not just social democrats who would be pointlessly antagonised. Free-market libertarians have been part of the labour movement since the beginning, from the individualist anarchists of the 19th century (including Thomas Hodgskin, Benjamin Tucker, Lysander Spooner, Ezra Heywood, Francis Tandy, Dyer Lum, Voltairine de Cleyre, and even to some extent Herbert Spencer, Gustave de Molinari, and Wordsworth Donisthorpe)…..

No amount of historical revisionism can overcome the reality that Communist regimes not only “attempted” but actually succeeded in “coopting” May Day. For many decades, it was and is the main holiday of international communism. Many of those who continue to celebrate it today are either communists themselves of sympathetic to communism. Just as there were and are non-Nazis uses of the swastika, there are non-communist uses of May Day. But that does not overcome the overwhelming totalitarian associations that have arise with both.

As for the issue of libertarian support for “the labour movement,” a lot depends on what one means by “labor movement.” Libertarians certainly have supported the rights of workers to freedom of contract and other economic liberties. On the other hand, libertarians have been deeply at odds with the vast majority of what is usually called the labor movement because that movement favors extensive government intervention in the economy, including numerous restrictions on the economic liberties of workers. That is certainly true of those labor movement activists who continue to celebrate May Day. And no more than a tiny handful of libertarians commemorate May Day today as anything other than a time of mourning for the victims of communism. Even if there is a labor unionist or “social democrat” case for keeping May Day as is, there is certainly no defensible libertarian case for it.

As noted above, I take seriously the possibility that it may be politically easier to establish a Victims of Communism Day on some other date. If we can get a broad consensus on November 7 or August 23, but not May 1, so be it. On the other hand, we should not lightly give up on the best available date for this commemoration. For that reason, we should urge “social democrats” to recognize the meaning that May Day has taken on over the last century and to pay more attention to the crimes of communism than many of them have been inclined to do so far.

Although I’m a strong advocate of property rights, I agree with most of what Georgetown political philosopher Jason Brennan says on the subject at the Bleeding Heart Libertarian blog:

The left believes that libertarians believe:

Property Rights No Matter What: People are self-owners. Respecting their self-ownership requires a particular kind of laissez-faire property-rights regime. We should have that regime no matter what, even if it immiserates the poor and systematically leads to widespread poverty.

In fact, hardly any self-described libertarians believe this. Instead, in one way or another, most believe that a system of property rights is supposed to solve real human problems and make our lives better. Most libertarians advocate free markets and property right in large part because they think this will tend to make people’s lives go better.

The left wants us to have a debate over whether “property rights no matter what” is true. They’ll win that debate.

What we’re trying to say in this blog is that if you look carefully at what the (smart) left means by “social justice”, almost all us classical liberals and self-described libertarians count as caring about social justice.

At least as a matter of moral theory, it’s a bad idea for libertarians to defend absolute property rights regardless of consequences. Doing so is both intellectually weak and unlikely to persuade anyone not already strongly sympathetic to libertarianism. The defender of absolute property rights will have to face painful hypotheticals such as the following:

What if redistributing a tiny fraction of George Soros or Rupert Murdoch’s fortune is the only way to save 1000 innocent people from starvation through no fault of their own? What if the only way to save the world from an asteroid strike is to violate the property rights of some misanthropic individual who doesn’t care if civilization is wiped out?

As I have pointed out previously, libertarian property rights absolutists are not the only ones who face such problems. The same issue arises with any theory of absolute rights:

Let’s say you believe that torture is always wrong. Then you would not resort to it even in a case where relatively mild torture of a terrorist is the only way to prevent a nuclear attack that kills millions. What if you think that it’s always wrong to knowingly kill innocent civilians? Then you would oppose strategic bombing even if it were the only way to defeat Nazi Germany in World War II. How about absolute rights to freedom of political speech? If you are committed to them, that means you oppose censorship even if it’s the only way to prevent Nazi or communist totalitarians from coming to power and slaughtering millions.

But the fact that advocates of other ideologies run into similar problems when advocating absolute rights is no reason for libertarians to replicate their mistakes.

Rejecting absolute rights as a matter of moral theory does not mean we should always reject them as a matter of policy. Political realities such as slippery slope problems, interest group power, and knowledge limitations might justify absolute prohibitions against some types of behavior even though there may be rare instances where it is actually justified. For example, while I recognize that there are rare cases where Kelo-style “economic development” takings cause more benefit than harm, I am skeptical that real-world governments subject to interest group lobbying are likely to confine their use to these unusual cases. For that reason, I favor an absolute ban on economic development condemnations in the real world, even though I would prefer a different policy if we had a completely benevolent government with perfect information. Similarly, one can favor an absolute ban on torture on the grounds that cases where it is the best way to prevent massive terrorist attacks are extremely rare, and real-world governments are unlikely to confine its use to those cases if given the opportunity to engage in it.

Rejection of absolutist rights theories also does not require us to be pure utilitarian consequentialists. While I would be willing to sacrifice free speech or property rights in order to stave off disaster, that doesn’t mean I have to sacrifice property rights for small increases in economic efficiency or free speech to protect oversensitive people from the psychic pain of exposure to opinions they find highly offensive – even in cases where potential offended listeners derive greater utility from censorship than the would-be speakers would from expressing their views.

Finally, while I agree with Jason’s major point, I’m only partially convinced by his characterizations of both libertarians and left-liberals. As he recognized earlier in his post, there are some “hard libertarians” who do support absolute property rights completely independent of consequences, or at least claim to do so. On the left, there are many who define “social justice” in terms of a broad ideal of economic equality that goes far beyond attention to utilitarian considerations, and concern for the plight of the innocent poor. Even if liberals and libertarians agreed on empirical issues, the differences between the two ideologies wouldn’t disappear completely. But they would surely decrease by a lot. Regardless, a libertarianism that eschews absolute rights theory is both sounder and more likely to win converts than one that is indifferent to consequentialist considerations.

Today is May Day. Since 2007, I have been commemorating this day here at the Volokh Conspiracy as Victims of Communism Day. Various other websites and blogs have promoted the same concept. In time, we hope to make this a worldwide commemoration similar to Holocaust Memorial Day. I explained the rationale for this idea in my very first post on the subject:

May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their regimes. I suggest that we instead use it as a day to commemorate those regimes’ millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century’s other great totalitarian tyranny. And May Day is the most fitting day to do so. I suggest that May Day be turned into Victims of Communism Day….

The main alternative to May 1 is November 7, the anniversary of the communist coup in Russia. However, choosing that date might be interpreted as focusing exclusively on the Soviet Union, while ignoring the equally horrendous communist mass murders in China, Camobodia, and elsewhere. So May 1 is the best choice.

Since I wrote that post, historian Frank Dikotter has unearthed new evidence solidifying China’s status as the communist regime with the most extensive record of mass murder. This makes it all the more preferable to choose an international rather than Russia-centric date for Victims of Communism Day.

For those interested, I also wrote posts on Victims of Communism day in 2008, 2010, and 2011.

Back in 2009, I sought to explain “Why the Neglect of Communist Crimes Matters.” In this post, I discussed the contentious question of whether various Soviet atrocities qualify as genocide. It is likely that only a minority of communist crimes fall under the current legal definition of genocide. The lion’s share are examples of “mere” mass murder. However, for reasons I explain here and here, I don’t think this distinction carries any significant moral weight.

UPDATE: Ed Kilgore of the Washington Monthly responds to this post here. After noting the pre-communist history of May Day as a pro-union holiday, he adds:

I’ve gone through this brief history in reaction to reading a post at the conservative legal site the Volokh Conspiracy promoting the idea, as it has since 2007, of renaming May 1 “Victims of Communism Day.” I’m sympathetic to the basic idea of a day for reflection on the bloody record of communist regimes, and of their false claim to serve as emancipators of the working class. But that’s all the more reason not to do anything to perpetuate the confusion of communism with legitimate movements for workers’ rights.

The chief advocate of a May 1 “Victims of Communism Day,” Ilya Somin, claims the most likely alternative, November 7, the date of the Bolshevik Revolution of 1917, inaugurating the first communist regime, is too “Russia-centric.” Well, May 1 is insufficiently “Communo-centric.” All the communist regimes trace their roots back to November 7, and they don’t share it with non-communists. For all I care, we can commemorate victims of communism any day other than May 1; maybe August 23, the anniversary of the Hitler-Stalin Pact, which revealed even to the most naive the true nature of the Soviet regime and launched one of the most intensively horrific periods of bilateral murder in world history.

But leave May 1 to workers…..

I don’t deny that May Day has a pre-communist history. However, for many decades it was and still is the major holiday of international communism. To try to disssociate it from that history is much like trying to separate the swastika from the Nazis on the grounds that it was once an ancient religious symbol unrelated to Nazism. Many of those who celebrate May Day since the fall of communism in the USSR are either communists themselves or radical leftists sympathetic to communism. Not all are, of course. But the communist connection is is clear and recognized around the world. No other date – including the anniversary of the Nazi-Soviet Pact is so clearly symbolic of communism as an international phenomenon. Nor do I think that there is any real danger that a May 1 date for Victims of Communism Day will somehow “perpetuate the confusion of communism with legitimate movements for workers’ rights.” To the contrary, it would help clear up that confusion by clearly indicating that the chief holiday of the international communist movement should be a day of mourning rather than celebration. Nations that wish to commemorate “workers’ rights” should do so on some date not associated with brutal totalitarian dictatorships, as the US and Canada have done by creating a separate Labor Day.

Finally, I should point out that neither I nor the Volokh Conspiracy generally are “conservative.” Most of the bloggers here are libertarians, myself included.

UPDATE #2: I respond to Roderick Long’s critique here.

The Cato Unbound website recently hosted an interesting debate over efforts by “Bleeding Heart Libertarians” to incorporate “social justice” into libertarian political theory. In the lead essay, “Bleeding Heart Libertarian” political philosophers Matt Zwolinski and John Tomasi argue that libertarianism is best defended not on the basis of absolute rights to property and self-ownershp, but on the grounds that it benefits the poor and the “least well off” members of society. They argue that this approach is superior to the property rights absolutism they associate with libertarians like Ayn Rand and Murray Rothbard.

As Zwolinski and Tomasi recognize, consequentialist considerations – including the impact of public policy on the poor – is far from a new idea in libertarian political thought. They note that 18th and 19th century libertarians repeatedly emphasized the negative effects of activist government on the poor as one of the justifications for restricting its power. In more recent times, such libertarians as Milton Friedman, F.A. Hayek, and many of the public choice economists have made similar arguments. The same is true of some of my own work on property rights, federalism, and the War on Drugs, and co-blogger David Bernstein’s work on labor regulation. Many of the above writers – including Friedman and Hayek – also argued that libertarianism is, at least in theory, compatible with a minimal welfare state focused on providing support to those of the poor who are genuinely incapable of supporting themselves.

In his response to Zwolinski and Tomasi, economist David Friedman points out that much of what they argue for is better justified by utilitarian considerations. Many prominent libertarian scholars – including Friedman – are utilitarians and defend libertarian institutions on primarily utilitarian consequentialist grounds. On that basis, the interests of the poor surely count no less than that of other people.

Despite the above continuity with prior libertarian thought, there are two important distinctive aspects to the BHL project. The first is the philosophical rigor with which they lay out the case for a version of libertarianism that leaves room for (tightly constrained) positive rights for the poor. I can’t fully cover this aspect of BHL in a blog post. But interested readers should consult Tomasi’s excellent recent book Free Market Fairness and various posts at the Bleeding Heart Libertarian blog.

The second is the use of the term “social justice” itself, which is usually associated with the left. Previous libertarian thinkers – including those who willing to accept a limited welfare state – generally eschewed this terminology. Hayek famously denounced the concept. This, I think, is what draws the ire of some critics of BHL, such as Todd Seavey. He seems to be concerned that adopting the terminology of social justice is a political dead end for libertarians, or at least likely to cut off possible alliances with conservatives.

I think Seavey’s critique is overblown, for reasons well articulated by Bryan Caplan. Furthermore, I highly doubt that allowing for the possibility of a limited welfare state will somehow prevent libertarians from forming alliances with conservatives. After all, most conservatives support some form of limited welfare state too (often a much larger one than even the most moderate libertarians).

On the other hand, like David Friedman and Michael Rappoport, I’m not convinced that “social justice” does any useful analytical work that is not better done by utilitarianism. Like the BHLers, I am not a rights absolutist. Even very important rights must sometimes be sacrificed if the consequences of sticking to them are sufficiently dire. But I think that the utilitarian idea of concern for human happiness and well-being is a more compelling consequentialist ideal than social justice.

In addition, there is some ambiguity in the way BHLers use the term “social justice.” To many on the left, social justice goes far beyond merely providing a minimal standard of living for the poor. It includes a concern for promoting economic equality more generally. In a recent post, leading BHL advocate Jason Brennan suggests that the BHL definition of social justice is more limited than that, focusing only on the idea that “the moral justification of our institutions depends on how well these institutions serve the interests of the poor and least advantaged. The basic institutions of society must sufficiently benefit all, including the least advantaged and most vulnerable members of society.”

This definition is hard for anyone to object to. Virtually any political theory recognizes that political institutions must protect the interests of “the least advantaged” at least to some degree (e.g. – they cannot be enslaved). However, as Bryan Caplan notes, a lot depends on how much consideration those interests are entitled to:

Does “depends” mean “depends to some extent”? Almost every moral theory says the same – including, as David [Friedman] points out, old-school utilitarianism. Does “depends” mean “depends entirely”? That seems implausibly absolutist – especially since “serving the interests of the poor and least advantaged” is (a) arguably supererogatory in the first place, and (b) dependent on how deserving the poor and least advantaged are.

On balance, I too am not convinced that the idea of social justice adds anything useful to libertarian thought that isn’t better captured by other concepts, such as utility. It’s also worth noting that not all BHL advocates endorse the idea of social justice. Jacob Levy, for example, does not. And, as Jason Brennan points out, endorsing a limited theory of “social justice” doesn’t necessarily require BHLers to embrace a large welfare state – or perhaps even a small one (Brennan calls himself “more or less an anarchist”). A BHLer who is highly pessimistic about the real-world impact of the welfare state on the poor could logically reject the welfare state.

Despite the ambiguity of their approach to social justice, I think the BHLers have made many valuable contributions to political theory. They are right to remind libertarians that we cannot be indifferent to the consequences of rights. They are also right to focus attention on the many different ways in which government intervention harms the poor rather than benefits them. Even if you believe that state-sponsored redistribution to the poor is necessary, the vast majority of the modern state actually provides benefits to the wealthy, the middle class, and organized interest groups - often at the expense of the poor. Finally, BHLers have made several advances in discussions of specific issues in political philosophy, most notably Jason Brennan’s work on the ethics of voting.

Ultimately, I think libertarians should reject both rights absolutism and absolute utilitarian consequentialism. The difficult question is how to strike the right balance between them. BHL doesn’t give us a completely satisfying answer, but it is a valuable contribution to the debate.

UPDATE: Brian Doherty gives a good summary of the BHL/social justice debate here, and Jason Brennan responds further to Bryan Caplan and David Friedman here.

Politico’s Arena site recently asked contributors to weigh in on whether the GOP is likely to be “wounded” by its support for severe restrictions on immigration. My answer is available here:

The real tragedy here is not that the GOP might suffer politically, but that so many conservative Republicans have turned against immigration in the first place. Conservatives claim to support free markets, yet many of them also wish to use massive government intervention to close off an international free market in labor. They extol the virtues of self-help, economic opportunity, and individual achievement. Yet many of them also want to build a wall to keep out immigrants who come seeking greater freedom and opportunity than they could hope for in their native lands.

Had the restrictive immigration policies favored by some of today’s conservatives been in force a century ago, the ancestors of most of those conservatives would never have been able to come to America in the first place….

Ronald Reagan said that America should be “a tall, proud city… teeming with people of all kinds living in harmony and peace.. and … doors …. open to anyone with the will and the heart to get here.” More recently, former Florida governor Jeb Bush urged Republicans to rethink their views on immigration. Conservative Republicans should heed their call.

In this post, I explained why conservatives (and some libertarians) are wrong to worry that increased immigration will lead to a larger welfare state. Evidence from many countries suggests that increased immigration and ethnic diversity actually reduces support for welfare state policies.

For this reason, among others, Jeb Bush is right to urge a change in the GOP position on this issue:

Republicans should reengage on this issue and reframe it. Start by recognizing that new Americans strengthen our economy. We need more people to come to this country, ready to work and to contribute their creativity to our economy…. Just as Republicans believe in free trade of goods, we should support the freer flow of human talent.

Co-blogger Eugene Volokh has an excellent post on how the proposed People’s Rights Amendment threatens freedom of speech. But it’s important to recognize that the proposal goes far beyond denying free speech rights to entities organized as corporations. It would deny them all other constitutional rights as well. Section 1 of the proposed amendment states that the “the rights protected by this Constitution” are limited to “the rights of natural persons.” Notice that this is not limited to free speech rights or even to First Amendment rights generally. Section 2 emphasizes that “People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state.” Notice that this is not limited to for-profit corporations lobbying for their narrow self-interest. It applies to all corporations of any kind, including nonprofits, media corporations, churches, and others.

Thus, the PRA would deny all constitutional rights to all entities organized as corporations. If the Amendment passes, government would be free to search corporate-owned premises at will, restrict freedom of religion at houses of worship owned by corporate entities (which includes most churches), condemn corporate-owned property for private uses and without paying compensation, and so on. This result is consistent with the logic of those who criticize the Citizens United decision on the grounds that corporations don’t have First Amendment rights because they aren’t “real” people. If this reasoning is correct with respect to the First Amendment, it surely applies to other constitutional rights too. But even dedicated supporters of campaign finance regulations might wonder whether those laws are so wonderful that their protection justifies the sweeping restrictions on all other constitutional rights embodied in the People’s Rights Amendment.

Unfortunately, this dangerous result is not precluded by Section 3 of the PRA, which states that “Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people.” Section protects the rights of “the people.” The preceding Section 2 stated that “People, person, or persons as used in this Constitution does not include corporations.” Presumably, that rule applies to the use of “people” Section 3, which there also does “not include corporations.” If, on the other hand, the reference to “people” in Section 3 does apply to corporations, then the entire PRA would have no effect at all, since Section 3 would preserve from limitation any constitutional rights to which corporations were entitled before the PRA.

Another possible way to mitigate the effects of the PRA would be for courts to rule that the rights of corporations are really just the rights of the natural persons who own them. If so, people organized as corporations qualify as “natural” persons too. I think that is the correct interpretation of the status of “corporate” rights under our present Constitution. But adopting this idea as an interpretation of the PRA would completely undermine the whole point of the Amendment, which is precisely to deny constitutional rights to organizations utilizing the corporate form.

UPDATE: Before writing this post, I had not noticed that Eugene had made some of the same points in this April 20 post. I apologize for any excessive duplication.

Famed property scholar Richard Epstein recently wrote an interesting post on an important Just Compensation Clause case that the Supreme Court is now considering whether to take:

[W]hen government [condemns private property] … it must pay just compensation to the landowner for the value of the property taken. That guarantee will, however, surely be eviscerated if the state is free to set compensation below actual value. To avert that evasion, the United States Supreme Court held in 1893 that in condemnation cases, “the compensation must be a full and perfect equivalent for the property taken.” In an 1878 decision, the Court had previously elaborated on this standard as follows: “The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses.”

The point here is simple enough. The value of property in all circumstances depends on the future uses to which it can be put. It is those potential uses that determine its value. To measure property values in ways that neglect that future development is to allow the government to take property at bargain prices….

Unfortunately, this lesson has been lost on the New York courts in River Center, LLC v. Dormitory Authority of the State of New York (DASNY) (2010). A petition for certiorari seeking to revisit the restrictive interpretation of the just compensation requirement in that case was filed by Harvard Law Professor Laurence Tribe. To show the broad nature of the appeal, that petition was supported by separate amicus briefs, one signed by former Attorney General Edwin Meese and a second by myself. This is an issue on which liberal, conservative and libertarian all see eye to eye.

The River Center dispute arose out of the condemnation of a valuable one-block site located in New York City several blocks south of Lincoln Center on New York City’s bustling West Side for a new dormitory for John Jay College… As Tribe wrote in his petition: “The developer at the time of the condemnation had invested years of work and many millions of dollars above the secured debt. By its legal rulings the New York Court has permitted all of this value and all of this investment in a rising market to be taken without compensation. . .”

The technique used to work this governmental sleight of hand was simple. The New York state courts treated this prime real estate site in active development as though it were “vacant land” on the ground that the arduous development progress would not come “to fruition in the near future….”

The New York courts dismissed as “speculative” all of the developer’s work in securing permits, preparing the site, obtaining interim financing and developing a viable marketing plan. That argument might make sense in those cases where there was no market indication of present value. But the real estate market is active in New York City and projects like this are always attractive to private investors who see risky, but large, returns down the road.

One of the few issues on which takings scholars across the political spectrum mostly agree on is that the Just Compensation Clause of the Fifth Amendment requires the government to at least pay market value for condemned property. There is disagreement over whether it should have to pay more than market value to compensate owners for loss of “subjective value” they attach to the property above its market price. But there is a broad consensus that the state should at least pay the market value. That’s why Richard Epstein, Laurence Tribe, and Edwin Meese all agree on this case.

And the market value of any property surely includes expected future uses, including uses that may not be 100% likely to occur. To be sure, the lower the likelihood of the future use, the less the possibility of it happening will add to the market value of the land in question. But that is no justification for excluding potential future uses from the market value calculation entirely.

If New York officials are allowed to get away with such shenanigans, they will be able to strategically time condemnations in order to lowball owners with potentially valuable future projects that have not yet come to fruition.

University of San Diego Law professor Michael Rappaport has written a response to my post arguing that, under a retributive theory of punishment, LA Lakers player Metta World Peace did not deserve to get extra punishment for his brutal elbowing of James Harden as a result of his previous offenses:

As a consequentialist, I might be the last person to ask about retribution, but I wonder whether this is right. Yes, World Peace has been punished for offense 1 already. But when someone commits offense 2, we need not think he is only being punished for offense 2. Depending on how the NBA rules are understood, he might be thought of as being punished for offense 2 by itself, plus for committing offense 2, having already committed offense 1. Put differently, one might think there was one offense — offense 2 — and another offense for having committed two offenses. In this respect, this latter offense is similar to the three strikes rule.

I don’t think the above logic works. If World Peace has already been punished adequately for offense 1, then there is no retributive justification for punishing him for it some more after he commits offense 2. If the punishment for offense 1 was insufficient, then perhaps he should get additional punishment for it; but that would be true regardless of whether he later commits offense 2. To put it a different way, there is no retributive justification for creating an “offense for having committed two offenses” if one of the two is a crime for which the perpetrator has already been adequately punished. The occurrence of offense 2 does not make offense 1 any worse or any more blameworthy than it was before.

Obviously, as I explained in my original post on this subject, there may well be good non-retributive reasons for inflicting extra punishment on repeat offenders, such as deterrence and incapacitation. But that’s a different issue.

Regardless of this disagreement, Mike and I agree on the far more important point that the 7 game suspension imposed by the NBA on World Peace was too lenient. No justice, no World Peace!

The Institute for Humane Studies has put up a podcast I recently did for them on the politics of The Hunger Games, the popular science fiction book series by Suzanne Collins, which has been recently made into a hit movie.

I previously blogged about political issues in The Hunger Games here, here, and here. Many have suggested that the series has a libertarian anti-government message, though I think it is much more ambiguous than that.

For those interested, I have also done IHS podcasts on political themes in Star Trek and Battlestar Galactica.