The Volokh Conspiracy

In a thoughtful recent post, co-blogger Dale Carpenter takes issue with my argument that bans on same-sex marriage are best attacked on the grounds that they are unconstitutional sex discrimination, and parts of my post suggesting that a minimalist strategy in the gay marriage litigation is not likely to work. Dale is one of the leading academic experts on the law of same-sex marriage, so I take his points very seriously. Nonetheless, I remain unrepentant.

Dale argues that the sex discrimination argument is flawed because “(1) it obscures the heart of the equal protection issue, continuing exclusion of gay men and lesbians, and (2) it isn’t sufficiently attuned to the Court’s sex-discrimination cases, which do suggest a lower level of scrutiny when legislation addresses ‘real differences’ between men and women (like the capacity to get pregnant or, one might say in the marriage context, the capacity to procreate as a couple).” On the first point, I think this “obscurity” is part of the strength of the argument. The idea that discrimination on the basis of sexual orientation should be subject to strong judicial scrutiny has no roots in the original meaning of the Fourteenth Amendment and only a modest basis in recent precedent (Romer v. Evans). By contrast, sex discrimination has long been subject to heightened scrutiny, and, as I noted in my first post on the subject, there is growing recognition that this is consistent with the original meaning. Most important, as I explained in some detail in the earlier post, laws banning same-sex marriage do not in fact ban anyone from marrying anyone else because of their sexual orientation. Anne is free to marry Bob even if one of them is gay or lesbian. On the other hand, these laws do restrict marriage rights on the basis of gender. Bob cannot marry Colin solely because he is a man. The greatest strength of the sex discrimination argument is that it directly confronts what the anti-same sex marriage laws actually do: limit marriage rights on the basis of gender. Obviously, these laws may well be motivated in large part by hostility towards gays and lesbians. But it is generally easier to attack a law based on its actual text than on the possible motivations behind it.

On Dale’s second point, it is essential to recognize that bans on same-sex marriage do not actually “track ‘real differences’ between men and women.” Yes, only an opposite-sex couple can procreate by natural means. But traditional marriage laws do not deny the right to marry to couples where one partner is sterile, couples that are too old to conceive, and so on. These couples can, of course, acquire children by adoption. But the same goes for same-sex couples.

Dale also attacks my claim that gay rights advocates should make a full-blown argument for the unconstitutionality of same-sex marriage bans in this case because, as I put it, a defeat might “lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.” In his view, Bowers was an unmitigated “calamity” for gay rights because it “was used by courts to deny gay-rights claims in the military, in housing, in public and private employment, in custody, in child visitation, and so on. Politically, the presumptive criminal status of homosexuals was used as a reason to resist every proposal for gay-rights legislation, from hate-crimes laws to marriage, even in states that had no sodomy law.” As I see it, however, all of this would have happened even in the absence of Bowers. Had there been no Bowers, some states would still have retained anti-sodomy laws, and most people would still have assumed that those laws are constitutional. Indeed, the absence of any strong legal challenge to them would have reinforced that assumption. With Bowers, by contrast, anti-sodomy laws were upheld by a shaky 5-4 Supreme Court majority. When the Court splits 5-4 on a important constitutional issue, everyone realizes that that question is far from settled and that the Court might well reverse itself in the future. That’s a net gain for the side that lost the case if that side was the one trying to change the status quo.

Dale ends by suggesting that “Bowers ‘laid the groundwork’ for Lawrence only in the sense that Pearl Harbor paved the way for VJ Day.” This is actually not a bad analogy. Pearl Harbor did in fact lay the groundwork for VJ day. It did so by mobilizing American public opinion against Japan, leading to a strong determination to pursue the war until total victory. In retrospect, launching a surprise attack on Pearl Harbor was a terrible mistake by the Japanese that sealed their doom. Similarly, Bowers outraged liberals and gay rights advocates, while at the same time the narrow margin of defeat led them to realize that they could prevail in the future. And win they did.

A similar happy outcome in Perry is far from certain. Perhaps gay rights advocates will suffer a more lopsided defeat in this case than in Bowers, and thereby become demoralized. As I noted earlier, this lawsuit is probably premature. That said, the tide of opinion is rapidly shifting in favor of gay marriage, and – over time – the balance of power between the two sides will shift as well, even if not as rapidly as the balance between the US and Japan shifted in 1942. It is therefore unlikely that a defeat in Perry v. Brown will set back the cause of gay rights for very long. Perry may indeed turn out to be like Pearl Harbor. But perhaps not in the way Dale supposes.

In a recent post, co-blogger David Bernstein partially rejects my argument that a ban on same-sex marriage qualifies as sex discrimination. As David puts it:

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination. On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

The opponents’ argument, however, in no way refutes mine. Many forms of sex discrimination have “several thousand years” of tradition behind them, often backed by religion. Consider such cases as the exclusion of women from many professions, unequal divorce laws, the treatment of wives and daughters as the property of their husbands and fathers, and so on. The fact that a form of sex discrimination has existed for a long time and enjoys religious backing does not make it any less discriminatory.

I am also unmoved by David’s analogy between a ban on same-sex marriage and a hypothetical Israeli law under which boys are entitled to a state-recognized “bar mitzvah,” while girls only get a “bat mitzvah,” which has the same legal status but is less prestigious. If the bar/bat mitvah were a government-endorsed legal status rather than a private cultural and religious tradition, it would still be sex discrimination for the state to allocate that status on the basis of gender – especially if one of the two labels were in fact more prestigious than the other. I would say much the same thing about David’s hypothetical of a female monarch who wishes to be labeled a “king” rather than a “queen.” These examples only have intuitive appeal because in modern liberal society, we generally regard bar and bat mitzvahs and kings and queens as essentially equal to each other (though I recognize that many Orthodox Jews disagree as to the bar and bat mitzvahs). It therefore seems pedantic to insist on one label or the other. By contrast, most people see “civil union” as a lower status than “marriage,” even if the legal rights are identical.

Consider a law under which men are classified as “first class citizens” and women as “second class citizens.” Although the distinction was originally enacted for the purpose of asserting male dominance, recent legislation has given second class citizens the same substantive legal rights as first class citizens. But first class status remains more prestigious than second class. Assume also that the idea that women cannot be first class citizens is endorsed by thousands of years of religious and secular tradition. If a woman files a lawsuit claiming that the denial of first class citizen status is sex discrimination, she should surely win – at least under a constitution that either bans sex discrimination outright or subjects it to some form of heightened scrutiny.

As I said in my original post on this subject, not all forms of sex discrimination are unconstitutional. Current Supreme Court jurisprudence subjects gender classifications to heightened “intermediate” scrutiny without banning them completely; and I think this is roughly the right approach. If, for example, opponents of same-sex marriage can prove that legalizing it would inflict serious harm on children, then laws such as California Proposition 8 should not be invalidated. But government-sponsored sex discrimination does not become constitutionally permissible merely because it is backed by religion or tradition or because the discriminatory law in question is mostly symbolic in nature.

UPDATE: I have modified this post slightly in order to eliminate a few stylistic problems.

UPDATE #2: David responds to this post in an update to his original one:

Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination. It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women. Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men.

I don’t see how calling this a “definition” adds anything to the debate. Once the “definition” becomes a legal status assigned by the state, there is still sex discrimination f the status is awarded on the basis of gender. If the definition of marriage had, for many years been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.

David also writes that “I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.” As I said in the original post, the “different” description in no way undercuts the fact that the state is engaging in sex discrimination. There is no contradiction between the statement that laws against same-sex marriage discriminate on the basis of gender and the statement that they embody a long-standing definition of marriage. These claims are not mutually exclusive in any way, and both are in fact true.

Finally, David states that “if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it. It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word ‘King’ meant then and now, and therefore not sex discrimination.”

As in the case of marriage, once “king” becomes a legal status as opposed to a mere word, it is sex discrimination if the state restricts that status on the basis of gender. In a society where there is no meaningful difference between the status of “king” and that of “queen,” however, it would not be sex discrimination if one word describes men who hold the position of monarch and the other women. Whether or not such a difference exists depends on various factors, including social context. Therefore, it is perfectly possible that limiting the title of “king” to men was an example of sex discrimination 50 years ago, but not today. In any event, whatever might be said of kings and queens, few today believe that marriages and civil unions are essentially the same thing, except for quirks of linguistic usage. Certainly not the supporters of Proposition 8, who devoted an enormous of effort to trying to pass a law ensuring that same-sex relationships cannot be legally considered marriages.

UPDATE #3: David has another update to his original post where he states:

The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”. By contrast, marriage was an existing form of male-female relationship that the state came to recognize…. so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

The state did not merely “recognize” a preexisting institution. It enshrined that institution into law and attached various legal privileges to it. The fact that the state’s official definition of marriage codified a preexisting understanding does not make that definition any less discriminatory. Let’s say that the definition of marriage as confined to same-race relationships had also existed “for thousands of years,” and was just as well-established as the definition of marriage as confined to opposite-sex relationships. Would that mean that a statute incorporating that definition into law is not race-discriminatory? Clearly, such a law would qualify as race discrimination, no matter how much people previously thought that marriage is, by definition, intraracial, or how long such a belief had persisted. The same logic applies to legal definitions of marriage that discriminate on the basis of sex rather than race.

Co-blogger Dale Carpenter argues that Judge Stephen Reinhardt’s recent decision striking down the California gay marriage ban is an attempt at “judicial minimalism” intended to make the outcome acceptable to a Supreme Court that is unlikely to rule that the Constitution requires nation-wide recognition of same-sex marriage. By “lowering the stakes,” Dale argues, Reinhardt gives the Court a way to affirm his ruling.

This may well be Reinhardt’s intention. But I am skeptical that it will work. Whatever one thinks of judicial minimalism generally, there is no minimalist way to strike down Proposition 8. Even if the impact of such a decision were limited to California, that in itself is a huge step. California is a state with some 37 million people. Moreover, the logic of Reinhardt’s decision is that there is no “rational basis” for denying same-sex marriage in a state that already permits same-sex civil unions that give couples the same substantive rights as marriage would. In addition to California, there are seven other states that permit civil unions without legalizing same-sex marriage, including major states such as Hawaii, Illinois, and New Jersey. Many other states are likely to enact civil unions over the next few years, because the idea is very popular, with even a plurality of Republicans supporting it, as of 2010. If the Supreme Court embraces Reinhardt’s reasoning, a state that enacts a civil union law would have to embrace gay marriage as well. That’s not a minimalist result confined to one or a few states, and the Supreme Court justices are likely to realize that.

On the other hand, Dale is probably right to argue that the Supreme Court is not going to rule that the Constitution requires recognition of same-sex marriage at a time when 44 states still forbid it. This suggests that the anti-Prop 8 suit was premature. It would have stood a better chance a decade or two from now, since public and elite opinion are both moving strongly in favor of gay marriage. In the meantime, however, the current lawsuit is likely to fail.

Given this reality, gay marriage advocates might be best served by making the strongest possible constitutional argument for gay marriage rather than trying to engage in “minimalist” hair-splitting that makes them look as if they are trying to evade the real issue, and is unlikely to persuade anyone who isn’t already committed to the cause. The Court might well still uphold Proposition 8. But such a defeat could lay the groundwork for a later reversal, much as Bowers v. Hardwick helped set the stage for Lawrence v. Texas.

In my view, the strongest available argument is that a ban on same-sex marriage qualifies as sex discrimination. Obviously, others will disagree, preferring to base their case on privacy arguments or on claims that discrimination against gays is unconstitutional. Regardless, this is the kind of argument that gay marriage supporters will have to make.

UPDATE: I am, of course, well aware that the anti-Prop 8 plaintiffs have made a variety of broader arguments during the course of the litigation. I do not mean to suggest that they are relying solely on “minimalist” claims. I just wanted to explain why a minimalist victory in this case is unlikely.

For readers who may be interested, Immigration Daily recently reprinted my November post on “What’s Distinctive About America.”

Conservative columnist Jeff Jacoby has a good article today on the somewhat overwrought criticism of Justice Ruth Bader Ginsburg for saying, in Cairo, that the US Constitution is not a good model for other countries in 2012. As Jacoby points out, conservative Justice Antonin Scalia recently actually said that “[t]he bill of rights of the former ‘evil empire,’ the Union of Soviet Socialist Republics, was much better than ours,” without raising any such hackles. Scalia avoided criticism in large part because he quickly added that a good constitutional text has little value if isn’t enforced. But, as Jacoby notes, Ginsburg added much the same qualification in Cairo.

Generally speaking, Ginsburg is absolutely right to suggest that the US Constitution is not an ideal model for every foreign nation. There are lots of ways in which our institutions might be inappropriate for other nations in different circumstances. For example, the US presidency concentrates enormous power in the hands of one person. That might be very dangerous in a society that has only recently emerged from dictatorship. Countries such as Switzerland have done fairly well with a plural executive. A small country that wages few wars has less need of a powerful, unitary executive than a global superpower. Similarly, the US system of federalism might not be the best model for the many societies where the main purpose of federalism is to mitigate ethnic conflict by giving minority groups subnational governments that they control. And a few provisions of the US Constitution are simply outright mistakes by the Founding Fathers that no one would want to imitate.

That said, I am much less sympathetic to Ginsburg’s specific reasons for preferring other models over the US Constitution. She would “look at the constitution of South Africa,” because it “was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights.” Obviously the US Constitution embraces many “basic human rights” as well. The rights present in the South African Constitution that are absent from ours are mostly “positive” rights to welfare state services, such as government guarantees of housing and employment. In many countries that have constitutions with such positive rights, the rights in question are not legally enforceable, so they have little actual impact. Where they do have an effect, the result is usually to increase government control over the economy and society, an outcome that I deplore for reasons I summarized here. In theory, of course, these positive rights provisions could be used to strike down harmful government actions, such as restrictive zoning laws that price the poor out of urban housing markets, and labor regulations that increase unemployment among unskilled workers. In practice, however, positive rights guarantees are rarely applied in ways that constrain government power rather than expand it.

As for Scalia’s statement, if he really believes that that Soviet Constitution’s individual rights provisions are “much better” than ours, he may not have read the former very carefully. Chapter 7 of the 1977 Soviet Constitution did indeed guarantee numerous individual rights. But many of them are socialist “positive rights” that I doubt Scalia would approve of. In addition, Article 52 gives, atheists, but not theists the right to engage in “propaganda” on behalf of their views on religion. Religious believers were (at least on paper) guaranteed freedom of worship, but, unlike atheists, could be banned from proselytizing. I doubt that Scalia would approve of this double standard.

More importantly, Article 59 emphasizes that “Citizens’ exercise of their rights and freedoms is inseparable from the performance of their duties and obligations,” and those duties include “comply[ing] with standards of socialist conduct” (Article 59) and “safeguard[ing] the interests of the Soviet state, and …. enhanc[ing] its power and prestige” (Article 62). Thus, the individual rights in the Soviet Constitution could be overriden in any cases where they conflict with “standards of socialist conduct” or somehow threaten the interests of the Soviet state or its “power and prestige.” All of this should also be read in light of Article 6, which guaranteed the Communist Party a monopoly of political power. That, presumably, is one of the “interests of the Soviet state” that can be used to limit individual rights. A careful reading of the Soviet Constitution – or even just the individual rights sections – leaves little doubt that it was written for a totalitarian communist state.

Obviously, Scalia was absolutely right to note that the Soviet government was perfectly capable of ignoring its own laws whenever it suited them to do so. At the same time, they did try to maintain a veneer of legality when possible and the Soviet Constitution was designed to help them do that. There is often a closer connection between the text of a constitution and the true nature of a nation’s political system than Scalia implies.

Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition 8 is an example of sex discrimination, and must be evaluated under the higher standards of scrutiny applied to gender discrimination by the Supreme Court.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey’s marriage was not illegal, even if his actions were morally dubious.

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

Although a ban on same-sex marriage qualifies as sex discrimination, it is not automatically unconstitutional. Since the 1970s, the Supreme Court has taken the view that laws that discriminate on the basis of sex do not violate the Constitution if they can pass “intermediate scrutiny,” which requires them to be “substantially related” to an “important state interest.” If opponents of same-sex marriage are right to claim that Western civilization will fall into deep decline if the practice is allowed, that would be enough to pass the test. Ditto if they can show that same-sex marriage somehow inflicts severe harm on children. But any such arguments would be subject to detailed judicial scrutiny. They would have to be backed by real evidence, and could not pass muster just by being minimally plausible, as under the “rational basis” test.

Some originalists might reject my argument on the grounds that sex discrimination itself is not really banned by the original meaning of the Fourteenth Amendment. I criticized such arguments in this post. For a much more comprehensive rebuttal, see this important recent article by Steven Calabresi and Julia Rickert.

A more moderate originalist critique of my position might hinge on the idea that the framers of the Amendment would not have thought of a same-sex marriage ban as sex discrimination. But it is not hard to figure out that a law under which a legal right is dependent on gender discriminates on the basis of sex. The Framers surely thought that this was justifiable sex discrimination. But that does not mean that it isn’t sex discrimination at all. If asked whether marriage laws circa 1868 limited the right to marry on the basis of gender, most people at the time would surely have said yes. And, as in the case of occupational discrimination against women, the Framers’ view that this form of sex discrimination is constitutionally permissible hinged on dubious factual assumptions that we are not bound by today.

In sum, a ban on same-sex marriage easily qualifies as sex discrimination and is therefore subject to heightened judicial scrutiny. Whether it could withstand such scrutiny is a question I leave to others, though I am skeptical about its chances.

UPDATE: Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a”statutory classification… that distinguish between males and females.” Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.

It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.

Economist Robin Hanson has a blog post discussing a recent study showing that most people tend to limit conversations about politics to those who agree with their views. This is not just a matter of people tending to have friends and acquaintances who have similar views. Even when there are people in our social circle who have divergent political views, the study shows that we are far more likely to talk about politics with those we agree with. Much previous research reaches similar conclusions. Moreover, we see the same pattern in people’s choices about the media they follow on political issues. Conservatives are likely to watch conservative TV channels, and read conservative newspapers, magazines, and blogs. Liberals have the opposite pattern. If you are a regular VC reader, you are far more likely to to be a libertarian or a conservative than not. If you regularly read a liberal political or legal blog, chances are that you’re a liberal yourself.

When people do encounter opposing arguments, they tend to evaluate them in a highly biased way, in effect holding them to a much higher standard than they apply to arguments that support their own views. Moreover, as Diana Mutz shows, most of these tendencies are especially pronounced among people who are most interested in politics and have the most strongly held political views.

Perhaps the avoidance of political talks with people we disagree with is in part driven by a desire to avoid social awkwardness. But that can’t explain the avoidance of opposing media. Moreover, conversations about politics with those we disagree with are awkward at least in part because people tend to be intolerant of opposing views.

All of this is highly irrational if the goal of reading and talking about politics is to seek out the truth. As John Stuart Mill famously put it, a truth-seeker should make a special effort to seek out opposing viewpoints, and try to evaluate them in an unbiased way:

He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion… Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them… [H]e must know them in their most plausible and persuasive form.

The evidence is less puzzling if truth-seeking is not the main goal of most political conversations or most people’s efforts to read about politics. Rather, many people enjoy having their preexisting views reinforced and like the experience of associating with their fellow “political fans” who support the same side as they do. Because the chance that your vote in an election will be decisive is infinitesmally small, there is little payoff for seeking out political truths just so you can be a better-informed voter. And most nonexperts have few other incentives to seek out the truth either. Being exposed to opposing arguments is often emotionally unpleasant, and giving them a fair hearing can be even more painful – especially if you are strongly committed to your own opinions. And the payoff for all that pain is usually very small, so why bother? Unfortunately, while such ignorance and close-mindedness is individually rational, it can cause terrible collective outcomes.

That’s not to suggest that people deliberately embrace political views they know to be false. But it’s easy to be cognitively lazy about seeking out opposing arguments and controlling your biases against them when you do run across them. Obviously, most people are not completely indifferent to opposing evidence on political issues. Sometimes the evidence against you is so obvious and overwhelming that it’s hard to ignore even if you want to do so. When Germany lost World War II, many Germans who had supported Hitler were forced to admit that he had led them to disaster. On most political issues, however, the evidence is much less stark and therefore it’s much easier to insulate yourself from possible challenges to your beliefs. Such insulation is not always impossible to overcome. Otherwise, no one would ever change any of their strongly held political views, except in the aftermath of WWII-like disasters. But it is often extremely difficult.

This semester, I am once again teaching Constitutional Law II: The Fourteenth Amendment. I often tell my students in this class that there are three issues on which most people are particularly resistant to rational persuasion: abortion, the death penalty, and affirmative action. And it so happens that the course covers all three.

Actually, there is a general tendency of to discount opposing arguments on a wide range of political issues, not just these ones. It’s a consequence of our general lack of incentive to think rationally about politics. But the problem is worse on some issues than others, and these three strike me as among the worst offenders.

Why are people more close-minded on some issues than others? One factor is intensity of commitment. Obviously, these are issues on which many people have strongly held views. But that doesn’t differentiate them from a lot of other policy disputes. Think of the many people who have intensely held views on health care, taxation, gun rights, and so on. More important, I think, is that these are issues where most people believe that your stance derives directly from your fundamental values, rather than disagreements about empirics. Either you believe that abortion is like murder or you don’t; either it’s inherently wrong for the state to execute people or it’s not; affirmative action is either overdue compensation for historic injustices or it’s a form of invidious racial discrimination. By contrast, most people recognize that disputes over issues like taxes or health care are at least in part driven by differences over empirical questions rather than values. In reality, of course, empirical questions do matter to disputes over affirmative action and the death penalty. How effective are affirmative action programs? How much does the death penalty deter murder? How many innocent people are likely to be executed? But most people don’t think about these issues in such terms. They assume that the real source of disagreement is values rather than facts.

Finally, these three issues are ones on which it’s hard to find a coherent compromise position. You can tell a persuasive story about why tax rates should be higher than conservatives say, yet lower than what liberals want. But it’s hard to explain why we should adopt a policy that’s somehow in between a strong pro-life position and a strong prochoice view. The same goes for affirmative action and the death penalty.

I have not seen any systematic research comparing the degree of close-mindedness on these issues relative to others. So it’s possible that attitudes on these three issues are not as hidebound as I think, or that things are worse on other issues than I imagine. For what it’s worth, I myself have changed my views on two of these three over the years (less pro-choice than I used to be, and less hostile to affirmative action). But I think those changes happened at least in part because I don’t care about these two issues as much as many other people do, and therefore was less emotionally invested in my views about them.

Because of numerous conflicting commitments, I have not blogged as much as I would have liked over the last two weeks. In addition, blogging has been impeded by the fact that our recent transition to a new platform has (hopefully only temporarily) wrought havoc with the VC archives. I rely heavily on links to old posts in many of my new ones, so as not to have to repeat in detail in-depth arguments that I have already made elsewhere. We hope to have these issues resolved soon, and then I have a large number of topics I intend to get to. So please bear with me for what I expect will only be a brief additional delay.

I recently accidentally got switched over to Facebook Timeline. For a variety of reasons, I strongly dislike the new format and want to switch back. Unfortunately, various tech sites that I have checked out say that Facebook forbids this. However, I’m hoping that one or more of our tech-savvy readers might have a way to get around this problem. So I welcome your suggestions.

And if by any chance any Facebook employees read this blog, I would greatly appreciate your assistance too. It’s not wise for you to alienate your customer base by refusing to reverse accidental switches to a format that the vast majority of customers seem to be opposed to as much as I am.

Nineteenth century phrenologists believed that they could discern a great deal about your abilities and personality by studying the shape of your skull. Today, phrenology is long-discredited. But many voters think they can judge candidates by making similar inferences from their attractiveness and other physical traits. Libby Copeland of Slate has an interesting article summarizing the growing body of research documenting this:

In presidential politics, does it help to look like Mitt Romney? Or, put another way, how much does Newt Gingrich’s face hurt him?

The answer will be disappointing to those who believe in the myth of the rational voter. Looks do indeed matter. But they don’t matter in exactly the way we thought—it’s not attractiveness alone that counts, but a cluster of traits people believe we can read into faces. It appears that voters, particularly those who aren’t paying much attention, don’t know much about politics, and don’t have strong partisan affiliations—which is to say, a solid number of Americans—operate like 19th-century phrenologists, believing on some not-quite-conscious level that that they can read a politician’s character by glancing at things like his eyebrows and jaw line.

Unfortunately, there is no reason to believe that voters are any better at discerning candidates’ likely performance in office from their faces than phrenologists were at predicting character traits based on skull patterns.

As Copeland notes, voters with low political knowledge levels are the ones most likely to base their decisions on candidates’ appearance. Unfortunately, relatively ignorant voters are extremely common. In this 2009 post, I described how appearance-based voting is a part of the broader problem of political ignorance and irrationality.

In this recent Washington Post op ed on how the GOP can increase its appeal to Hispanic voters, former Florida Governor Jeb Bush says the following about immigration:

The American immigrant experience is the most aspirational story ever told. Immigrants left all that was familiar to them to come here and make a better life for their families. That they believe this is possible only in America is the best expression of American exceptionalism I know. And on this score, Republicans have a winning message and record as the party of the entrepreneur….

[W]e need to think of immigration reform as an economic issue, not just a border security 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. U.S. immigration policies should reflect that principle. Just as Republicans believe in free trade of goods, we should support the freer flow of human talent.

These points are not new. That immigration “strengthen[s] our economy” is the longstanding consensus view of most economists. Others have previously noted that there is a deep contradiction between anti-immigration conservatives’ support for free markets and their opposition to the free flow of labor across national borders. Ronald Reagan recognized this many years ago, and supported freer immigration throughout most of his political career, even touting an America whose “doors were open to anyone with the will and the heart to get here” in his 1989 farewell address to the nation. The importance of Bush’s op ed is not that it says anything new, but that the person saying it is a prominent Republican whom many conservatives see as a preferable alternative to the party’s current presidential candidates.

Unfortunately, Bush did not address what is perhaps the most important objection many conservatives have to increased immigration: the fear that it will lead to the growth of the welfare state. I covered that issue here. Contrary to conservative conventional wisdom, increased immigration not only does not lead to a bigger welfare state, but may well boost efforts to cut it back.

In his new book, Coming Apart: The State of White America, 1960-2010, Charles Murray argues that a new elite class has emerged that is much more ignorant about the lives of ordinary Americans than were the elites of earlier generations:

As the new upper class increasingly consists of people who were born into upper-middle-class families and have never lived outside the upper-middle-class bubble, the danger increases that the people who have so much influence on the course of the nation have little direct experience with the lives of ordinary Americans, and make their judgments about what’s good for other people based on their own highly atypical lives…

Many of the members of the new upper class are balkanized. Furthermore, their ignorance about other Americans is more problematic than the ignorance of other Americans about them. It is not a problem if truck drivers cannot empathize with the priorities of Yale professors. It is a problem if Yale professors, or producers of network news programs, or CEOs of great corporations, or presidential advisers cannot empathize with the priorities of truck drivers. It is inevitable that people have large areas of ignorance about how others live, but that makes it all the more important that the members of the new upper class be aware of the breadth and depth of their ignorance.

If Murray is right, this kind of elite ignorance is the flip side of the general public’s political ignorance. Public ignorance is dangerous because it reduces the quality of voting decisions; elite ignorance because it reduces the quality of the decisions made by elites once they get into positions of power.

To illustrate his point, Murray includes in the book a 25 question quiz that is intended to test readers’ knowledge and exposure to mainstream non-upper middle class culture (he assumes that most of the readers are members of the upper middle class elite). I managed a middling 37 on his 0-99 point scale.

As Murray recognizes, one can easily quibble about the details of many of the questions. For example, I not only have “attended” a Rotary Club meeting, but actually gave a speech at one when I was 17. Maybe I should get extra credit for the latter. I would also have achieved a higher score if there were more sports-related questions. Other readers will have different complaints. Even so, there is no reasonable version of this test on which I would have come out looking like a Man of the People. More generally, Murray is surely right that there is a culture gap between the new upper middle class and the rest of the public, and that the former is often ignorant about the lives of the latter.

At the same time, I am skeptical that the gap is much greater than it was fifty years ago. Murray claims that the elite of the early 1960s was much more in touch with mainstream culture than today’s upper middle class (which he defines, roughly, as people in various professional occupations who are in the top 5% of the income distribution). He only offers a modest amount of evidence to support that claim, and on some points his evidence cuts the other way. For example, one of the differences between the upper middle class and the mainstream that Murray cites is that the former are much more likely to engage in foreign travel. But that gap was even greater in 1960, when foreign travel was much more an elite preserve than it is today, in the age of relatively cheap jet flights.

More importantly, I am far from certain that the kind of knowledge Murray describes is actually important in improving the quality of public policy. Yes, elites who make policy that affects the lives of truck drivers should have some knowledge of “their priorities.” But it’s not clear to me that knowledge of TV shows, foods, preferred sports, etc., of truck drivers is all that useful to understanding those priorities. Even the experience of living with a low income or working at a job where your body hurts at the end of the day (both stressed by Murray s especially important) may be overrated. You don’t have to do either to realize that poverty imposes substantial constraints on your life, or that physical pain is extremely unpleasant. I actually did qualify for the points you get from having had a job where the body hurts at the end of the day. But I doubt that my attitude towards manual labor would be much different if I hadn’t. Overall, I’m not convinced that a political elite composed of people who scored a 99 on Murray’s test would do much better by the truck drivers than one composed of people who scored 19 or 29. At the very least, Murray offers little if any proof of it in the book.

To be sure, there is an important sense in which elite ignorance reduces the quality of public policy. In a complex society where people have a wide variety of preferences, not even the most knowledgeable elite experts can really have enough information to impose efficient paternalistic regulations that preempt individual choice. But this problem would persist even if all our elites had a deep and extensive knowledge of non-elite culture. The solution is not so much an elite that is better-informed about the culture of the masses, but an elite whose power over those masses is more limited and decentralized.

That said, I’m certainly open to the possibility that diminishing some types of elite ignorance would improve our society. But I’m skeptical that what we need to have a better elite is the kind of knowledge Murray emphasizes.

Tad DeHaven of the Cato Institute has a good post highlighting the data on state governments’ growing dependence on federal funds. Since 2001, federal grants have risen from 25.7% of state government spending to 34.1% today. Most of that growth has occurred since the present recession began in 2008.

One of the main distinctive benefits of American federalism is that, historically, state governments have had to raise most of their funds from their own taxpayers, rather than relying on grants from the feds. This gives states incentives to compete for taxpayers and improve the quality of their policies and public services, thereby increasing the effectiveness of voting with your feet. I cover these points in more detail here.

In most other federal systems, the central government provides the lion’s share of subnational governments’ funding. If present trends continue, the United States may join this trend. State governments will increasing look to Washington for most of their funds, and incentives for competition and innovation will be undermined. It’s possible that fiscal policy will return to “normal” as the economy improves. But state governments are likely to lobby for current grant levels to continue even after the recession ends. Current federal subsidy levels could easily become the new normal.

Earlier today, the Stanley Cup champion Boston Bruins visited the White House. But playoff MVP goaltender Tim Thomas chose not to attend. He issued a very libertarian-seeming statement explaining his reasons:

I believe the Federal government has grown out of control, threatening the Rights, Liberties, and Property of the People.

This is being done at the Executive, Legislative, and Judicial level. This is in direct opposition to the Constitution and the Founding Fathers vision for the Federal government.

Because I believe this, today I exercised my right as a Free Citizen, and did not visit the White House. This was not about politics or party, as in my opinion both parties are responsible for the situation we are in as a country. This was about a choice I had to make as an INDIVIDUAL.

This is the only public statement I will be making on this topic. TT

For reasons I described here, I don’t think we should attach much weight to the political views of sports and entertainment celebrities. That holds true even in the rare cases like this one where a celebrity makes a political statement I agree with. Still, I thought Thomas’ decision was interesting, if only because there are so few libertarian celebrities out there. I don’t know if I would have rejected the invitation to the White House were I in Thomas’ position. But I certainly sympathize with his reasons for doing so, including the point about both parties bearing responsibility for today’s overgrown federal government.

UPDATE: Various media reports indicate that Thomas is a fan of Glenn Beck, who is far from uniformly libertarian, and occasionally endorses ridiculous conservative conspiracy theories. So Thomas may well be more of a conservative himself. That said, the reasons he gave in his statement are ones that most libertarians would agree with.

It’s arguable that Thomas should have gone to the White House anyway, on the grounds that events like this are really about paying tribute to the office of the presidency rather than the policies of the present occupant of it. On the other hand, presidents of both parties do these sorts of events in part because they see a political advantage in it. On balance, if I were Thomas, I would probably have gone to the event anyway, since it doesn’t imply endorsement of the president’s agenda or of the general course of federal policy over the last few years. But I can certainly understand Thomas’ reasons for making the opposite decision.

The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts have departed from the original meaning and have allowed the federal government to seize too much power. As I explained in this article, the Tea Party fits the classic model of “popular constitutionalism” – a popular movement that makes constitutional issues a central focus of its agenda. Until now, such issues have been mostly peripheral for OWS.

Today, however, a group inspired by OWS is holding a series of “Occupy the Courts” protests, which do focus on constitutional issues, mostly attacking the Supreme Court’s campaign finance decisions:

The “Occupy” movement will turn its focus on the nation’s highest court Friday as organizers plan to gather around the Supreme Court building dressed like justices and singing songs of the Motown group, The Supremes.

The event is being held around the two-year anniversary of the Supreme Court decision in the case of Citizens United v. Federal Election Commission, which removed many limits to corporate spending in federal political campaigns, organizers say….

The one-day event dubbed “Occupy the Courts” is organized by the grassroots group called Move to Amend and was inspired by the Occupy Wall Street participants, organizers said.

“Move to Amend volunteers across the USA will lead the charge on the judiciary which created — and continues to expand — corporate personhood rights,” the Occupy the Courts website states.

There is some irony in the OWS protestors campaign against “corporate personhood.” OWS gets a great deal of financial and organizational support from labor unions and other left-wing organizations that are, legally speaking, organized as corporations. Labor unions were, in fact, among the biggest beneficiaries of the Supreme Court’s Citizens United decision, which the OWS protesters revile. Do the protesters believe that labor unions and left-wing nonprofits have First Amendment rights? Should the government have unconstrained authority to forbid unions and other corporate entities from spending money on OWS protests and other forms of political speech? If not, then the OWS protesters cannot categorically reject the idea that people organized as corporations have constitutional rights too.

Perhaps the real argument is that only profit-making corporations should be denied constitutional rights, while unions and nonprofits fall in a different category. But there is nothing in the text, structure, or history of the Constitution to support any such distinction. Freedom of speech applies just as readily to speakers motivated by economic self-interest as those with more altruistic motives. Moreover, economic self-interest is a big part of the motivation of labor unions too. One of the main purposes of unions is to increase the incomes of their members. OWS itself often appeals to economic self-interest. After all, one of their central demands is the redistribution of wealth from “the 1%” to “the 99%,” including OWS activists themselves.

Such contradictions are not unusual in popular constitutionalist movements. Many Tea Party supporters, for example, continue to back the federal War on Drugs, despite the fact that much of it is unconstitutional under a limited, originalist interpretation of congressional power.

Whether OWS addresses the contradiction in their position, and, more generally, tries to develop a coherent constitutional vision remains to be seen. It’s possible that OWS will, over time, make constitutional issues a major part of their agenda, thereby becoming a full-blown popular constitutional movement. It is also possible that they will quickly move back to focusing on other matters. If I had to guess, I would predict that constitutional concerns are unlikely to become a central focus of OWS. They have too many other issues that interest them more. However, the movement is still relatively new and could easily develop in unexpected directions.

UPDATE: Lest there be any doubt, Move to Amend, the OWS offshoot that organized the “Occupy the Courts” protests states on their website that their position is that “human beings, not corporations, are the persons entitled to constitutional rights.” They don’t just think that Citizens United was wrongly decided. They believe that corporate entities should not be able to claim any constitutional rights at all. That, of course, includes not only free speech rights for unions and nonprofit corporations, but also numerous other rights.

In this recent column, conservative writer David Frum points out that Margaret Thatcher represented a heavily Jewish constituency, had numerous Jewish advisers and cabinet members, and won the Jewish vote in her electoral campaigns as leader of the Conservative Party.

These are not new revelations. As I pointed out in this post, which cites Thatcher’s success with British Jews along with other examples, the US pattern of Jewish voters overwhelmingly supporting the political left is unusual relative to other English-speaking democracies. In Britain, Canada, and Australia, Jews either disproportionately vote for right of center parties or at least do so at roughly the same rate as the gentile population. Some of the conservative politicians supported by Jews in these countries are not as far to the right on economic and foreign policy issues as the US Republican Party. But that certainly wasn’t true of Thatcher, or some of the others. These patterns undermine claims that there is some sort of general Jewish affinity for the left. Even in the United States, Russian immigrant Jews (about 12% of the Jewish population), vote overwhelmingly Republican.

As I explained in this series of posts, native-born American Jews’ unusual voting patterns are in large part the result of the link between the Republicans and the Religious Right, which many Jews see as anti-Semitic, and as seeking to establish Christianity as a quasi-official religion. Many Jews also dislike that movement’s extreme social conservatism. Jewish opinion doesn’t differ much from the national average on economic policy, but Jews are much more socially liberal than gentiles. Conservative parties elsewhere in the English-speaking world have fewer Religious Right connections than the Republicans and are less socially conservative than they are.

Absent the Religious Right, American Jews would not suddenly all become loyal Republicans. But they would probably divide their votes between the parties much more evenly than is the case today.

UPDATE: As I noted in my very first post on the subject, I am well aware that Jews disproportionately voted Democratic even before the rise of the Religious Right. But that does not explain why they continue to be overwhelmingly Democratic today, even as many other groups that were part of the New Deal Democratic coalition have become much more evenly divided:

I should note that in my view the Religious Right factor is what explains the overwhelming dominance of liberalism among American Jews today. It does not explain their support for the Democratic Party in earlier periods (e.g. – from the 1930s to the 1950s), when the political situation was very different and Jews themselves were much poorer then they became later. Many other groups were overwhelmingly Democratic at the high point of the New Deal coalition (e.g. – Catholics, “white ethnics,” etc.) but became far less so as they became more affluent and the political landscape changed. Strikingly, the Jews did not change similarly, and I believe that the Religious Right factor is a crucial reason why they didn’t.

The editors of the Liberty Fund’s new Law and Liberty website recently asked me to write a short article on federalism and freedom commenting on the Supreme Court’s decision in Bond v. United States, where a unanimous Court emphasized that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. My piece is available here:

In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”

The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty…..

is there any reason to believe that federalism protects individual freedom more generally? After all, history shows that state and local governments can also threaten liberty…..

Enforcing limits on federal power is no panacea for freedom. Nonetheless, federalism does promote liberty in several important ways. First, when political power is decentralized, individuals can “vote with their feet” against jurisdictions whose policies are oppressive or heavy-handed…..

The more political power is decentralized, the more areas of government policy will be subject to constraint by foot voting. Thus, limits on federal authority help realize the potential of foot voting as a protection for liberty.

State and local oppression is also less dangerous than federal oppression because it affects fewer people. An oppressive policy enacted by one state usually undermines liberty only for its own residents. By contrast, if Washington adopts the same law, it will cover the entire nation……

Ultimately, a free society must guard against threats to liberty from all levels of government. That requires imposing constraints on both state and federal authority. Liberty needs multiple institutional safeguards. Federalism by itself is not sufficient. In some situations, state and local governments can themselves become threats to our freedom. At the same time, federalism can enhance liberty in many situations by allowing us to vote with our feet and by limiting the reach of oppressive policies.

Other parts of the article describe some of federalism’s limitations as a safeguard for freedom, such as its relative ineffectiveness in protecting immobile people and property against abuse.

Although it has been pushed out of the US headlines by the New Hampshire primaries, radical Islamist parties just won the lion’s share of the vote in the final round of the Egyptian elections.

I wrote about why this sort of development was a likely and dangerous possibility in several posts going back to the very beginning of the “Arab Spring” (see here and here). If the Islamists consolidate power and make serious progress towards implementing their agenda, Egypt 2011-12 could easily join Russia 1917, Cuba 1959, and Iran 1979 as a classic historic example of a case where a bad regime was overthrown only to be replaced by one that is much worse. Obviously, the future course of events is far from certain. It is not yet clear how much power the Islamist parties will actually get to wield, and the larger of the two may be internally divided about its agenda. But developments to this point have been far from positive.

In today’s Wall Street Journal, Jonah Lehrer has an article arguing that political ignorance makes democracy work better, and may even be essential to its survival. Much of the article is based on extrapolations from a dubious study of fish behavior, which I criticized here. Lehrer takes the argument a step further by claiming that excessive political knowledge may have been a big factor in facilitating the Nazis’ rise to power in 1930s Germany:

If every voter was well-informed and highly opinionated, then the most passionate minority would dominate decision-making. There would be no democratic consensus—just clusters of stubborn fanatics, attempting to out-shout the other side. Hitler’s rise is the ultimate parable here: Though the Nazi party failed to receive a majority of the votes in the 1933 German election, it was able to quickly intimidate the opposition and pass tyrannical laws.

That the Nazis succeeded because German voters were too knowledgeable would have come as news to Adolf Hitler, who wrote in Mein Kampf that “[t]he receptivity of the great masses is very limited, their intelligence is small, but their power of forgetting is enormous.” As a result, he advocated taking advantage of political ignorance by using crude and simplistic propaganda:

All propaganda must be popular and its intellectual level must be adjusted to the most limited intelligence among those it is addressed to. Consequently, the greater the mass it is intended to reach, the lower its purely intellectual level will have to be. But if, as in propaganda for sticking out a war, the aim is to influence a whole people, we must avoid excessive intellectual demands on our public, and too much caution cannot be extended in this direction…..

Once understood how necessary it is for propaganda in be adjusted to the broad mass, the following rule results:
It is a mistake to make propaganda many-sided, like scientific instruction, for instance….

[A]ll effective propaganda must be limited to a very few points and must harp on these in slogans until the last member of the public understands what you want him to understand by your slogan. As soon as you sacrifice this slogan and try to be many-sided, the effect will piddle away, for the crowd can neither digest nor retain the material offered.

This kind of propaganda was an important part of the Nazis’ electoral success under the Weimar Republic, when they eventually managed to get over one third of the vote, making themselves the single most popular party. If the average German voter was “well-informed,” it would have been much harder for the Nazis to achieve so much electoral success. For example, a well-informed German electorate would have been skeptical of absurd Nazi claims that Germany’s political and economic crisis was caused by the tiny Jewish minority. They might also have rejected the Nazis’ crude zero-sum view of the world economy, which posited that Germany could only achieve prosperity by conquering other nations. It isn’t possible to list here all the different ways that the Nazis benefited from voter ignorance. But the bottom line is that a more knowledgeable German electorate would not have been to their advantage.

Lehrer also presents a distorted view of what happened after the Nazis took control of the government in early 1933. They did not “intimidate the opposition” by being “the most passionate minority,” as may have occurred in the fish study. Rather, they did so by the more conventional method of banning all opposition parties, imprisoning their leaders, and inflicting severe punishment on anyone who resisted. Absent these measures, it is unlikely that they would have been unable to crush the opposition so completely. There is no reason to believe that an electorate composed of “opinionated and well-informed” voters would necessarily give in to the most “most passionate” minority absent the use of force. Indeed, the more opinionated and well-informed you are, the less likely it is that you will change your mind about an important issue merely because a “passionate minority” loudly claims that you are wrong. As Hitler recognized, crude propaganda is usually most effective with ignorant audiences.

I don’t deny that there can be unusual situations where political ignorance is actually beneficial. But the rise of the Nazis is one of the last places to look for evidence that ignorance leads to bliss.

As co-blogger Jonathan Adler notes, Rick Santorum’s view of constitutional federalism is that the federal government can always override the states when the latter are doing something that is “wrong”:

I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.

Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won’t get involved in that.

I will get involved in that because the states, as a president I will get involved because the states don’t have a right to undermine the basic fundamental values that hold this country together.

Although I’m no fan of Santorum’s, there is a small kernel of truth to his argument. Some evils are so great that we may be justified in violating constitutional limitations on federal power in order to eliminate them. Slavery is probably the best historical example. Even some anti-slavery jurists, including Dred Scott dissenter Justice Benjamin Curtis, thought that Abraham Lincoln had exceeded his constitutional authority when he issued the Emancipation Proclamation (which freed all slaves held in the rebel states). But even if Curtis was correct, Lincoln still did the right thing. As Thomas Jefferson wrote in a letter defending the Louisiana Purchase (which he undertook even though he thought it was unconstitutional), “[A] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest.”

But there is a big difference between claiming that we are morally justified in violating the Constitution in some extreme cases and concluding, as Santorum did, that the Constitution allows the federal government to “get involved” whenever the states are committing a “wrong.” That would essentially give the feds the power to override the states anytime a national majority or the federal political elite thought state policies were wrong in some way. It would lead us to essentially unlimited federal power.

Maybe such unlimited power would not be a bad thing if we were confident that the feds would restrict themselves to overruling the states only when the latter are genuinely “wrong” in some objective sense, while otherwise leaving them alone. In reality, however, an unconstrained power to correct state wrongs is also an unconstrained power to impose federal wrongs. And federally imposed wrongs are often more dangerous than state wrongs. A “wrong” state policy affects fewer people than a similar federal policy does. Moreover, people can often “vote with their feet” to escape harmful state laws, which is much harder in the case of federal laws.

Obviously, there are important exceptions to these generalizations, some of which I have written about elsewhere. But there is good reason to reject the view that the federal government should be allowed to override the states anytime the latter do something “wrong.”

UPDATE: It’s worth noting another important difference between the view that unconstitutional actions are sometimes justified for the purpose of alleviating truly massive state injustices and Santorum’s claim that the feds can act anytime states do something “wrong.” In the former case, federal officials subject themselves to the risk of legal action, including possible impeachment. If they explicitly admit that they are violating the Constitution (as Jefferson did), they could also face public backlash for it. These dangers will tend to mitigate the risk that federal officials will violate the Constitution anytime they find a state policy they dislike. Such risks are much smaller in a political environment where a Santorumesque interpretation of the Constitution becomes dominant.

The Wall Street Journal recently published an article on widespread public ignorance about federal spending [HT: Andrew Varcoe]:

Many Americans have strong opinions about policy issues shaping the presidential campaign, from immigration to Social Security. But their grasp of numbers that underlie those issues can be tenuous.

Americans vastly overestimate the percentage of fellow residents who are foreign-born, by more than a factor of two, and the percentage who are in the country illegally, by a factor of six or seven. They overestimate spending on foreign aid by a factor of 25, according to a 2010 survey. And more than two-thirds of those who responded to a 2010 Zogby online poll underestimated the part of the federal budget that goes to Social Security or Medicare and Medicaid.

“It’s pretty apparent that Americans routinely don’t know objective facts about the government,” says Joshua Clinton, a political scientist at Vanderbilt University.

Americans’ numerical misapprehension can be traced to a range of factors, including where they live, the news they consume, the political rhetoric they hear and even the challenges of numbers themselves. And it isn’t even clear how much this matters: Telling people the right numbers often doesn’t change their views.

These are not new findings. I wrote about earlier survey data with similar results here and here. Despite the growing fiscal crisis that has emerged over the last few years, most of the public knows very little about federal spending.

The article suggests that this ignorance may not matter much because the majority of survey respondents don’t change their minds about policy priorities even when presented with correct information. It is certainly true that people are slow to change their minds about political issues, often even rejecting outright any data that conflicts with their preexisting views. In general, however, people with higher levels of political knowledge have much different views on many issues than those with low levels, even after controlling for partisanship, race, gender, income, and many other background variables. Knowing one key fact about the budget may not change your mind. But being generally knowledgeable about federal spending may well lead you to have different views from otherwise similar people who are mostly ignorant about it. Moreover, on some key issues where the balance of political power is close, there could be important effects on policy even if only five or ten percent of voters change their minds.

In this case, the public’s failure to understand that entitlements and defense constitute the lion’s share of federal spending probably makes them more reluctant to consider cuts in these areas. Conversely, the belief that foreign aid and payments to illegal immigrants are much greater than they actually are lead voters to focus their ire on these issues far more than is warranted.

Newt Gingrich recently claimed that Founding Fathers George Washington and Thomas Jefferson “would have rather strongly discouraged you from growing marijuana and their techniques with dealing with it would have been rather more violent than our current government.” As Jacob Sullum points out, this ignores the fact that Washington and Jefferson themselves grew hemp on their plantations, and that marijuana use was neither illegal nor socially stigmatized in the late 18th and early 19th centuries.

Perhaps more importantly, few if any of the Founders would have thought that the federal government had the constitutional authority to ban marijuana growing. As I discuss in this article, as late as the early twentieth century, advocates of Prohibition had to enact a constitutional amendment to forbid the sale of alcoholic beverages, because the dominant view at the time held that Congress did not already have the power to do this. If they are serious about enforcing constitutional limits on federal power, Gingrich and other conservatives cannot continue to ignore the ways in which the War on Drugs has severely undermined those limits, most notably in Gonzales v. Raich, the Supreme Court’s most expansive interpretation of federal authority so far.

Earlier today, I skipped both the annual AALS conference and the parallel Federalist Society conference in order to attend a moving memorial for Vaclav Havel sponsored by the National Endowment for Democracy and the Czech embassy. Appropriately, most of the speakers were dissidents and human rights activists from societies with repressive governments – including Syria, China, Cuba, Ethiopia, and others. It was an impressive demonstration of the ways in which Havel inspired people all over the world. I won’t try to summarize what the speakers said (videos of some of their remarks are available here). But it was particularly interesting to hear Ethiopian opposition leader Birtukan Midekssa speak about how she had read Havel’s The Power of the Powerless while in prison.

I briefly summarized my own thoughts on Havel’s life and legacy here.

On Tuesday, January 10 at noon, I will be speaking on the War on Drugs at a panel organized by the University of Chicago Law School Federalist Society. I will discuss the ways in which the War on Drugs undermines constitutional federalism, some of the harm it inflicts on our society, and recent changes in public and elite opinion that may make it easier to promote change in this field. Also taking part in the panel will be Cook County Commissioner John Fritchey.