Mobile redundancy

Orbital Express has demonstrated a number of interesting techniques of great long-term importance, such as the automated refueling of spacecraft. (Here is the biggest long-term reason why automated and on-orbit assembly and refueling are important). But the mission also demonstrated the feasibility of an idea that is probably also of great but nearer-term importance, which I call mobile redundancy. The idea is that if one has a constellation of standard satellites, redundancy can be provided with mobile spare parts rather than by building on-board redunancy into each satellite as is done now. This could result in a large overall savings in weight launched per year of useful satellite lifetime.

Hohfeld without "the state"

Words like "rights," "freedoms", "liberties", "duties", and so on describe crucial ideas but are often used ambiguously in politics and the law. Lawyer Wesley Hohfeld early in the twentieth century in the United States developed a classification and technical terminology for these ideas that goes far towards eliminating much of this ambiguity.

First Hohfeld defined these ideas as relationships between persons. Second, he organized them into binary opposites and correlatives. Here are the binary opposites -- you either have them or you don't:

right/no-right
freedom/duty

(I'm substituting "freedom" where Hohfield and his followers have used "privilege" , "liberty", or even worse "permission" -- for reasons that should become apparent below). With respect to a given subject matter and under a given set of laws governing that subject matter, you either have a right or no right, never both. And you either have a freedom from duty or a duty, never both.

The most crucial aspect of this terminology is that these ideas are also related as correlatives -- the existence of one implies the existence of the other. Thus

right of A => duty of (at least) B
freedom of A => no-right of any other

Hohfeld's terminology is often described (e.g. by the legal scholars Corbin and Singer) in terms of "the state" that whose enforcement actions create rights (and thus duties) and whose lack of enforcement action creates "privileges" or "permssions". Regular readers of the blog will see at least one problem with this approach, but does Hohfeld terminology make sense independently of "the state"?

Not only do these terms make sense without "the state", they make even more sense without "the state" and even make sense independently of the existence of anything like a state. Stateless scenarios help to illuminate the meanings of Hohfeld's terms, and getting rid of "the state" will shed light on analysis of the origins of rights. For example, by distinguishing a "right" from a "freedom", I will create a much clearer description of John Locke's theory of a "social compact" which highlights some of its strengths and weaknesses. This generalization of Hohfeld terminology also allows us to apply it to real world situations involving conflicting jurisdictions and laws rather than the mythological monolithic state.

Let's start with a Mr. Robinson Crusoe stranded alone on his tropical island. Crusoe is able to do anything he likes without legal or other coercive restriction, or indeed without a negative response by another person of any kind -- he has perfect freedom. But he can't sue or otherwise punish anybody, so he has, in Hohfeldian terms, no rights. Robinson Crusoe expemplfies the correlatives "freedom" and "no right".

Now let's strand a Mr. Geoffrey Dalrymple on the island with Mr. Crusoe. In a state of pure amorality and lawlessness (which is to be sure purely theoretical and in practice would not last for long), there are no rights of any kind. Crusoe has no duties and thus perfect freedom to do anything (kill Dalrymple, steal his food, and so on), and correlatively Dalrymple has no rights. Dalrymple for his part has no duties and thus perfect freedom, and and Crusoe has no rights.

Do we require a state to introduce rights into this situation? In fact we don't even need the introduction of a third party. To introduce rights and duties into this situation, Crusoe and Dalrymple merely need to enter into an agreement, a la Locke. This agreement could be as informal as a common cultural understanding or as formal as carving words on stone. Let's say Crusoe agrees not to commit a tort (battery, theft, etc.) against Dalrymple and Dalrymple agrees to not commit a tort against Crusoe. Crusoe now has rights (defined by tort law as he understands it, unless stated explicitly) against Dalrymple and Dalrymple now has tort rights (defind by tort law as he understands it, unless stated explicitly) against Crusoe. Crusoe correlatively has duties towards Dalrymple, and vice versa, and both correspondingly have their freedoms reduced. They have traded some freedoms for some rights. (This is a much clearer way of saying, in the older terminology in which "freedom", "rights", and so on were overlapping and often indistinct concepts, that people have traded away some rights in order to preserve other rights).

Of course the consequences of a right -- in particular the remedy available for the breach of a right -- is hardly the same as in a mature legal system with courts, police, etc. If one of Crusoe's rights is breached, for example by Dalrymple stealing his food, his only remedy is to take an action himself -- for example, steal back some food. Crusoe and Dalrymple would be wise to specify such remedies in their agreement. We can see how a third party, or even better courts and police, would help enforce such a remedy, but they, and much less "the state", are not necessary for the basic Hohfeldian ideas of right and duty to arise.

Corbin, in describing Hohfeldian terms, invoked "a giant" as a metaphor for "the state." It's easy to see that if a wise giant lived on the island it would be profitable for Crusoe and Dalrymple to agree to use that giant to hear their cases and enforce the remedy they had agreed upon. This corresponds to the "choice of forum" clause found in many modern contracts. But let's say there were two wise giants on the island, Giganticus and Gargantua. This multiplicity of giants would certainly confuse Corbin's (and Singer's) explanations of Hohfeld, but is in fact readily explicable in Hohfeldian and choice-of-forum terms. There are often great advantages to division of labor. Crusoe and Dalrymple could thus agree to divide up the subject matters of their agreement. They might, for example, choose Giganticus to adjudicate and enforce tort and property law, and Gargantua to adjudicate and enforce contract law (include this meta-contract).

Alternatively, if Giganticus is strong and Gargantua is wise, they might agree that Gargantua should decide the cases regarding any subject matter (i.e. act as a judiciary) and Giganticus should enforce them (i.e. act as an executive). As another alternative , the giants could agree on the division of subject matter jurisdiction betweem them, or divide between them adjudication and enforcement, and force their agreement on Crusoe and Dalrymple.

Each of these scenarios is a plausible one. None involve "the state", but each involve rights and correlative duties as well as freedoms and correlative lack of rights. The probability that the giants would enforce their own brand of law, rather than just enforcing whatever Crusoe and Dalrymple agree to, casts some doubt on Locke and other "social contract" theorists as providing an actual history rather than an ideal of the formation of legal systems or states. More likely is the model of Mancur Olson, in which "stationary bandits" out-competed "roving bandits" in the coercively competitive business of collecting taxes and thereby formed states (and, I'd add, formed other kinds of political property rights as well). All fodder for future posts.

Ref: Hohfeld, W. N. Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. by W.W. Cook (1919); reprint, New Haven, CT: Yale University Press, (1964).

UPDATE: I have clarified my recasting of Locke's analysis and corrected a typo pointed out by a commentor.

Quo Warranto and the Presumption of Nonauthority

The current debate over statutory restrictions on the uses of the writ of habeas corpus should lead us to re-examine the foundations and context of that prerogative writ. The only explicit mention of it in the U.S. Constitution is in Art. I Sec. 9, as one of the restrictions on the powers of Congress:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

From this language we may reasonable conclude two important principles:

1. Habeas corpus may only be suspended by an act of Congress (which raises the question of what is to be done if Congress and the courts cannot convene).
2. Habeas corpus is presumed to be a right that precedes the Constitution and is incorporated by it, by restriction on when it may be suspended.
   

But if the writ of habeas corpus precedes the Constitution and is incorporated into it, does that make it one of the unenumerated rights of the Ninth Amendment, and if so, what about the other prerogative writs that have a similar status in common law, such as quo warranto, mandamus, prohibito, procedendo, and certiorari? We don't hear much about these in current jurisprudence, except the last, in discretionary appeals.

I have argued in a paper in progress, "Presumption of Nonauthority and Unenumerated Rights", at http://www.constitution.org/9ll/schol/pnur.htm , that all of those writs, and more, are indeed among the unenumerated rights of the Ninth Amendment, and that, contrary to current doctrine, these are not creatures of statute but fundamental rights that may not be constitutionally burdened. For evidence of this we can find among the proposed amendments from the New York ratifying convention not just a declaration of the writs as rights, but of a right to petition for the rights "in the name of the people", that is, as private attorneys general. That we have the rights was taken for granted. Only the standing of any person to petition for them was thought necessary to be asserted in an amendment.

Habeas corpus can be considered a subset of quo warranto. The former demands an official prove his authority to detain a person, but the latter demands an official, including a private official, prove his authority to do anything he may be doing or threatening to do, including holding an office. The former requires the official to produce the detainee in court. The latter requires him to suspend his activity until proof is made.

Was there ever a time, following the Declaration of Independence, which made the people the sovereign, when any individual could go to court with a petition for a writ of quo warranto and get an official activity suspended until that official proved his authority? Yes, there was, in the early republic, but so seriously did officials take the threat of such a writ that they took great care not to exceed their authority, so that the remedy almost never had to be carried forward, or precedents established. It should come as no surprise that officials don't like the right and have done almost everything they can to deny or deprecate it or make people forget about it.

Perhaps it's time to change that.

Most law schools don't teach much about the prerogative writs, not even habeas corpus. It should come as no surprise that many lawyers and judges are unclear on the concept or how it is supposed to work, if we followed the original standard of due oprocess. Too many judges treat a petition as an ex parte motion to show cause, with the burden on the petitioner. It is not. The writ is not an order from the court to produce the prisoner and the proof. The petition itself is the order to do that, much like a citation in a civil case, to respond to the filed petition. the writ is the finding by the court of whether the official has the authority, ordering release of the prisoner if he does not.

The only statutory component of habeas corpus, or the other writs, was a prescription of how much time the official has to comply. Originally, that ranged from three to twenty days, depending on the distance of the official from the court.

The question may arise, what happens if the court fails or refuses to hold a hearing, or accepts the authority of the official without the proof? This question is critical to an understanding of the role of courts in the Anglo-American legal tradition. The answer, by original standards of due process, is that the writ issues by default if the respondant fails to respond, or even if the court fails to hold a hearing. If the judge accepts the official's claim of authority without proof, then by those ancient standards, the judge himself may be removed from his position by a writ of quo warranto. In 18th century England this became a serious matter, and "peasants with torches and pitchforks" burning down courthouses and hanging judges was something that actually happened. If courts were derelict the people, as militia, took the law into their own hands, enforcing writs that by common understanding issued by default. But that process was not always so "due", and the line between militia enforcing the law and an enraged mob was often crossed.

We now live in an era of increasing tension between the judiciary and the public. This is a matter that deserves our constructive attention, or history could repeat itself.

The origins of dialectics and the hubris of Hegel and Marx

Hegelianism was an exercise in intellectual hubris which easily misled its followers into political hubris. Hegel's antithesis-thesis-synthesis structure came straight out of medieval law schools. This dialectical method was (and with some variations and changes of terminology still is) used where, under the facts of a dispute, the law as it stands is arguably ambiguous. Legal scholars analyze the legal arguments of plaintiff (thesis) and defense (antithesis) and reconcile these arguments in order to reach a just verdict and a more comprehensive and clear rule of law (synthesis).

Later in the Middle Ages, but still long before Hegel, the dialectical method spread, with variations and changes of terminology, to some other branches of university study (e.g. theology and science), but its success was still quite dependent on the availability of a rich set of facts from which to use the method to induce laws. Thus, for example, phrases like "law of nature" and "scientific law" stem from this origin of the inductive scientifc method.

The real value of dialectics in interpersonal matters comes from taking a specific dispute between two specific people, with very specific and well investigated facts, and inductively reaching a new clarification or minor variation on a rule of law, custom, or manners (synthesis) that achieves a just outcome for this dispute.

This is how the law is supposed to evolve, inductively, slowly, case by case over many centuries. This is how good law is "made" by judges. But in the hands of a dogmatic philospher like Hegel or Marx, dialectics became an exercise in faux implied omniscience -- the idiotic but compelling hubris we can trace the broad path of history itself through the movements of major opposing ideas (Hegel) or economic factions (Marx), and through this cabalistic exercise learn the "laws of history" which culminate in the idealistic outcome already desired by the philosopher, whether the supremacy of the State (Hegel) or an egalitarian utopia (Marx). Divorced from the reality of details and the patience of evolution, the outcome in real socieities, though labelled "progressive" (in honor of the direction of history as "discovered", i.e. as desired and cabalistically justified, by these philosphers) -- though called "progressive", the actual outcome was more often than not quite in the opposite direction. The actual outcome was analogous to what a genetic engineer would get if (with our limited knowledge of the workings of genes and the proteins they code for) said bioengineer cut and hacked thousands of genes and then reassembled them in a more "rational" manner. All that bioengineer would get out of such a naive and radical procedure is monsters and death. Our genetic code is far too complex to change more than a few genes at a time. Our interpersopnal relationships, and thus our society and our politics, is far more complex still. That is why we got even more monsters and death from Hegel, Marx, and their many naive and radical followers.

A very brief history of due process

The history of the Due Process Clause in the United States' Constitution, and how it came to cover everything from (at various points in U.S. history) freedom of contract to abortion, is a long story which I should tell some day, but here is a very short version. It starts with the idea of a "common law" or "due process" -- synonyms in late medieval and Renaissance English law. Then these phrases meant not substantive judge-made law (as "common law" means today) but a group of procedural rights and principles which courts had slowly developed through precedent and that all royal courts in England (even to some extent privately owned courts) were expected to respect. One of these basic due process principles was that a court could not "take property from A and give it to B" except as a remedy for a wrong done by A to B. The Due Process Clause of the 5th and 14th Amendments -- "no deprivation of life, liberty, or property without due proces of law" -- was meant as a reference to these basic rights and principles, as well as to the continuing precedential development of such rights and principles by courts.

The basic idea behind the Lochner line of cases was that minimum wage laws, maximum hour laws, and such were taking property from one group (e.g. capital) and giving to another (e.g. labor) even though the one group had done the other no adjudicated wrong. But since many government laws even in the 19th century did redistribute rights people value from one class to another like this, this way of applying due process principles was too broad an attack on statutory sovereignty and practical politics to work without some compromises.

But it was too late to discover such compromises throught the slow process deciding disputes and discovering rules, before being swamped by the tide of Progressive statutory sovereignty. The Lochner line of cases quickly became hedged about and mutated: the principle involved was later said to be freedom of contract (both an employer's and a worker's rights were violated by such laws, rather than the problem being a redistribution without a wrong), and it was held (even before the New Deal) that a government merely had to come up with a "rational basis" to justify taking in this loose sense from group A to give to group B, etc.

After Footnote Four, "merely economic" rights like property were derogated -- it became trivial for government to "prove" a "rational basis." So we now find "rational basis" applied to most kinds o f rights while an "important/compelling governmental interest" is applied to important personal and political rights like contraception, abortion, free speech, voting, interstate travel, etc. (BTW, that U.S. courts find interstate travel to be a fundamental right is very interesting in light of the importance of low exit costs in fostering healthy legal and political competition).

The "rational basis" test is the state of Lochner precedent today -- a trivial test that "merely economic" laws practically always pass, in contrast to the "rationality-with-teeth" of personal rights cases like Lawrence v. Texas. Nominally, however, the test of Lawrence is the same as the test of Lochner, and both are good law, so that it takes only a court sympathetic with property rights to revive Lochner.

Such a development may take the form of an elephant that is in the room of modern due process cases -- freedom of contract. Implicit in Griswold, Planned Parenthood v. Casey, and many other such cases is not only a personal right, but a freedom of contract that is quite necessarily associated with this personal right. Without freedom to contract with an abortion provider, the right of a woman to get an abortion would be unduly burdened. Only this can explain why a contraception clinic is able to sue for a right to vend, not merely use, contraception, and Planned Parenthood is able to sue for a right to provide abortion services, not merely for a right of a woman to have an abortion.

The same is true for almost any other fundamental right. Our crucial right of interstate travel, for example, must involve to at least some extent the freedom to contract with an airline company (buy a plane ticket and travel), to purchase a motor vehicle, to contract with a car rental company, and so on. This being the case, our courts should recognize that freedom of contract is not "merely" an "economic right." It is also a basic political right. Our courts should recognize a general freedom of contract, which becomes a fundamental right if it involves a contracting about a fundamental right, whether that be buying condoms (Griswold v. Conneticutt) or sending our children to private schools (Pierce v. Society of Sisters).

Nanobarter

There have been over the years several plans and attempts to develop very fined grained markets online. There are several barriers to the success of such markets. An important barrier recently raised by Zooko in his comments on the Tahoe peer-to-peer disk backup project is the vulnerability of and to a centralized mint issuing money.

One possible answer to central mint vulnerability is bit gold -- a currency the value of which does not depend on any particular trusted third party. Another alternative is an object barter economy.

The key ideas of this nanobarter scheme are

(1) the stuff to be traded (in Tahoe, disk space for backup) is represented by digital barter certificates (same protocol as digital cash, but every node is a "mint" that issues its own barter notes), and

(2) default barter order and an agent ("market translator") that translates user behavior into barter orders. In the disk space economy, the default barter order might be to simply do a periodic barter that backs up N gigabytes of other peoples' disks in exchange for N gigabytes of their own. Many more sophisticated barter orders are also possible.

If the reader is familiar with Menger's account of the origin of money from barter, this scheme is quite in the spirit of his scenario -- except that we reduce the transaction costs of barter by brute force automation instead of by making everybody choose a single currency.

The transaction log and accounts are presented to the user in terms of a "pet currency"; the market translator automatically converts all different kinds of barter note prices into their pet currency values whenever prices need to be presented to the user.

Every computer on the network (called a "node") runs a "mint" that issues "currency" (barter notes) backed by its commodity (e.g. disk space). In a simple system all disk space barter notes are treated as equivalent. Or there might be L different currencies corresponding the the L different kinds of leases in Tahoe. (In Tahoe a certain amount of disk space on a foreign disk is "leased" for a certain period of time). Indeed, a barter note is simply a lease in bearer form -- it can mean "I promise to bearer to provide G gigabytes of disk space for D days", or whatever the terms of the lease is.

In a simple system, the barter note may simply be a ticket that never gets traded, merely issued and used. In a slightly more advanced system they trade but only at par value. A gigabyte is a gigabyte regardless of whose server its on -- this is a very simple proxy measure that excludes service quality from automated consideration. Since this is a nanomarket, there is normally no opportunity for the user to intervene with a more sophisticated or subjective judgment. Even a crude proxy measure, if full automated, may be sufficient for a nanomarket to outperform the non-nanomarket status quo (no transactions at all or the use of resource allocation algorithms, although the latter in a broad sense can be considered to be competing nanobarter systems).

In a more sophisticated system (probably overkill for the purposes of Tahoe) some disk space notes trade at a discount because their backup services are unreliable. Bots "ping" the backup services provided by nodes to gather statistics on their reliability, and then buy reliable and sell unreliable notes. There are O((LN)^2) automated currency exchange products which these bots trade. The mental transaction cost problem caused by having O((LN)^2) prices with LN currencies is thus solved underneath the covers by these automated trading bots. The resulting trades are presented to users, if necessary, in terms of pet currencies, and we can have a large barter economy without the mental overhead of all those prices.

To avoid the transaction costs of thinly traded markets, the bots might come to prefer the notes of one or a few services as "intermediate commodities" asMenger described, and most of the markets might become unused, leading to O(LN) actively traded markets -- an economy with a constant number of currencies and LN prices. But that's an entirely optional process that can be allowed to emerge. And with the right reliability-ping and arbitrage bots I suspect the transaction costs of thinly traded markets might be quite small, so that there is no compelling reasoning for a centralized currency to emerge and the added reliability of multiple currencies can be retained without the hassle (mental transaction costs) of users having to deal with multiple currencies.

There are few computational transaction cost barriers left to developing nanotransactions -- the biggest is network delay time. The largest remaining barrier to nanomarkets is, for most kinds of transactions, mental transaction costs. User audits of nanotransactions cannot be both frequent and at fine granularity, or mental transaction costs quickly come to dwarf the value added by the market. Any problems with nanomarkets that might require such audits must be handled in a highly automated fashion.

The approaches to designing this automation all seem to start with developing reasonable proxy measures of service value. For nanomarkets it is far more important that these be measurable in fully automated fashion than that they be terribly accurate. After good proxy measures have been developed, one must obtain or estimate user preferences in terms of these measures. Obtaining preferences directly from the user has to be done in with traditional value granularites, otherwise mental transaction costs dominate. Alternatively, further proxy measures can be made that estimate user economic preferences from their normal input behavior. These are then compiled into automated nanotransactions with the market translator.

In defense of the judicial branch

Mencius Moldbug repeats a currently popular quote from Thomas Jefferson:

As Jefferson said (in 1820): "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is 'boni judicis est ainpliare jurisdictionem,' and their power the more dangerous as they are in once for life."

Jefferson was like almost all Whigs (the philosophy, not the parties) overly enamored of the legislative branch. (Bagehot's sovereignty of Parliament was the end point of this trend). Supreme Court tenure is the closest thing we have to political property rights and the resulting long time horizons in this country. It is also, at the risk of sounding parochial, a group of highly trained and experienced professionals. Would you rather have experienced software engineers writing -- or at least reviewing -- the code that runs on your computer, or bunch of frat boys who happen to speak smoothly and look good on TV?

With the possible exception of the independent agencies, the federal judiciary is the only branch with anything resembling long term political preferences. This is reflected, for example, in the very high quality and care put into their opinions, compared to the typical ideological quackery and other ignorant nonsense that generally passes for political debate in the Congress and the mass media and beyond.

The Court, it is true, has like the executive and legislative branches eventually succumbed to every long-term political trend. But it has severely attenuated many of the political fads most dangerous to liberty.

The current popularity (and abuse) of this Jefferson quote stems from a propaganda movement Jefferson would have abhorred: to invest our executive branch with arbitrary powers to act unchecked by our Constitution. The hot air in this whole debate about "who decides what is constitutional" also reflects the general ignorance about how separation of powers works.

To summarize separation of powers in one sentence: it is a formal system of mutual veto. Under our corporate charter here in the U.S., our Constitution, Congress gets a full veto at will because it must originate legislation. The President gets a partial veto at will. The Supreme Court's veto by contrast can only be of a very specific and careful kind. It only gets to decide what it has to decide when asked to decide a case in the face of conflicting laws. It must decide whether a statute conflicts with our corporate charter, the Constitution. In such cases the charter must prevail. Articles of incorporation trump by-laws. And it must justify such a ruling in a legally professional opinion.

Nothing at all stops the Congress or the President from vetoing legislation because they believe it to be unconstitutional, and indeed this was quite normal in the first century of our Republic to have long debates about the meaning of the Constitution in the halls of Congress. This was long a habit, up to the 20th century, until Progressive legislators decided they didn't much understand or care for that archaic charter. Even Congressional supporters of constitutionalism rhetorically shifted the Reform-and-Jingo media flack they got from arguing that a desired law violates our charter to the relatively immune Court. (This was recently reflected in Senator Spector voting for the Military Commissions Act despite expressing his belief that it was unconstitutional -- the Court will take care of that, he said).

It is profoundly unfortunate that two branches have abdicated their responsibilities to our Charter, but the solution is hardly to strip the responsibility from the only remaining branch that still to some extent exercises it. What is most extremely dangerous to liberty for the executive to do is ignore such a Court opinion and proceed to execute a law that the Court has carefully explained violates our Constitution. This has happened to a disturbingly large degree in the current Bush Administration, for example with its warrantless NSA mass-surveillance pgoram. It most recently and famously occurred at a local level, where the Los Angeles County Sheriff released media celebrity Paris Hilton from jail in violation of her judicial sentence. She had been punished by the judge according to law for her repeated breaking of drunk driving and probation laws. This is one sheriff who should himself face some jailtime if we still live under "the rule of law, rather than of men," as the founders of our country intended.

This kind of arbitrary executive power, but of a ubiquitous nature rather than as a temporary response to national emergency or the quirk of a celebrity-worshipping (or bribed?) sheriff, is what the current criticisms of the Court, if they prevail, will result in. This outcome would destroy one of the few remaining controls against arbitrary power we have left.

Why Justices can be rude

Live from my alma mater, Professor Orin Kerr asks why U.S. Supreme Court Justice Ruth Bader Ginsburg has recently taken the gloves off in her dissenting opinions. They are getting less "collegial" and more blunt.

Ginsburg is following in the grand tradition not only of Justice Harry Blackmun (who, as Kerr points out, sharpened his rhetoric and made fairly direct appeals for political attention just before he retired) but of Justice Antonin Scalia. Scalia's (in)famously ascerbic dissents have long been an object of interest among legal commentators, who have wondered how such rhetoric can do anything but further antagonize his fellow Justices, whom he presumably would rather influence towards his point of view.

The answer is that he had a different audience in mind. His purpose was probably not, as Kerr suggests for Blackmun, to influence elections themselves -- voters don't read Supreme Court opinions. Scalia's dissents instead played a big role in drawing the attention of conservative insiders to the Court. They motivated conservative pundits to pay attention to the Court, and conservative pundits got conservative media generally paying attention. They had the authority of a Justice to back their claims that there were big problems with the Court. Scalia's dissents have provided a blueprint for what legal doctrines conservatives should support, and which need fixing, a blueprint which cannot be obtained either from typical conservative punditry about abortion etc. or from the liberal legal academia. Many talented conservatives became involved in finding and promoting high quality judges with the proper Scaliaist beliefs, like now Chief Justice John Roberts. Highly motivated conservative attention is why talk radio, to the bewilderment of all except conservatives, buried Harriet Myers for insufficient conservative purity. Instead of two more Justice David Souters -- a seemingly conservative Republican pick who infamously ended up turning out quite liberal opinions -- conservatives as a result have two more solid seats "in the mold of Scalia and Thomas" -- really far more in the mold of the former -- on the Court with Roberts and Justice Samuel Alito.

I give Scalia's sharp dissents much of the credit/blame for that. An effective ideologue does not pull punches. Ginsburg and Justice John Paul Stevens would be politically wise to folllow Scalia's strategy of direct talk if they wish to influence future Court choices. They have the best tenure anybody could hope for and they should directly speak their minds. As for its overall effect, bluntness may make the Court seem less civilized -- hurting its authority in the same way that taking off its robes and dressing in jeans would hurt its authority -- but it increases the amount and diversity of truth that it speaks. That is a quite welcome thing in these parts.

Why legal procedure is central to politics

"Political power comes out of the barrel of a gun," Mao Zedong infamously said. This was true in the civil wars Mao fought and was too often true in the lawless way he oppressed his people. It is generally true in the anarchy of international relations, and would be true for individuals if they lived without law. People of practically all political stripes agree that the problem of force is one of the most important political problems, and I suspect most would agree with me that it is the most important problem. It is also the central problem addressed by the law.

We can start to understand both law and politics by understanding a bit of the highly evolved common law in a situation that lies close to anarchy: the obligatory gunfight in the old Western movies. With my habitual lawyerly habit of "issue spotting," I've noticed how the good guys in these old Westerns almost always, if often barely, follow the common law of self-defense. The white hat waits until the villain reaches for and grabs his gun -- showing intent to shoot -- before he grabs his. This heroic habit illustrates one of the great summaries of the substance of the common law -- namely "thou shalt not initiate force" -- or, in a more peaceful setting, fraud. If one had to summarize the substantive parts of the common law into one sentence, that would be it -- "thou shalt not initiate force or fraud."

This is not to say that one can logically deduce all important parts of law or politics from such a principle -- a common mistake of ideologists. One can no more deduce the content of the law from simple principles than one can deduce the specific sequence of an animal's genetic code from any few simple rules. Both, in mathematical terms, have an irreducible Kolmogorov complexity and any of these kinds of summaries are quite lossy. But it does turn out that almost all of the substantive common law operates in close proximity to that libertarian principle.

There are some other good ways to summarize the common law. "The right to be left alone" is a good brief description of our rights under criminal, tort, and property law -- in other words these are generally systems of negative rights rather than of positive rights to compel another person's affirmative effort. Since we often don't really want to be left alone we also have contract law, which generally operates according to the principle of "keep your promises", inheritance law, "respect a dying man's wishes, and if you don't know them he meant to leave his wealth to his family," and so on.

Back to our movie: let's say we come into the theater just as our hero is firing his gun. He has already drawn his gun while the villain is still bumbling around. Our hero shoots first and our villain crumples to the ground. If we didn't know this was an old Western, where the hero always draws faster despite drawing second, a reasonable guess would be that our killer was able to shoot first because he drew first, and is thus a murderer.

Only in full context do we see the initiation of force and a response to it. In isolation, the response to force is often indistinguishable from the initiation of force. We often can't know for sure whether an act of coercion is an unlawful initiation of force or a lawful response to it until we've seen the entire film (and in modern Hollywood, not even then, though I digress). Or, to change metaphors and introduce a bit legalese, we often don't have probable cause to believe someone has initiated force until we've assembled some pieces of the puzzle. Learning to some even greater degree -- clear and convincing evidence in some private cases and beyond a reasonable doubt in criminal cases -- who initiated force requires even more pieces.

Furthermore, to achieve justice -- to deter, to exact retribution, to make whole the victim, or to heal the sick criminal, whichever one or more of these we take to be the goal of justice -- we must almost always respond to force with force. Taken in isolation that response will itself look like an initiation of force. Furthermore, to gather the evidence we need in most cases to achieve sufficient high levels of confidence -- whether balance of the probabilities, clear and convincing evidence, or beyond a reasonable doubt -- we often have to initiate force with third parties -- to compel them to hand over goods, to let us search their property, or to testify. If politics could be deduced this might be called the Central Theorem of Politics -- we can't properly respond to a global initiation of force without local initiations of force.

Again keeping in mind that we are leaving out many important exceptions and details, we might summarize good legal procedure -- and more abstractly, the way a good political system should respond to force -- as follows:

(1) An initiation of force might have occurred

(2) Learn enough, without responding with force of our own, until we have probable cause to believe an initiation of force has occurred.

(3) Respond with our own force in order to arrest the persons, valuables, and evidence involved, and engage in the trial(s) and other procedures necessary to convince those most highly knowledgeable about the case, and if it is important enough the world generally, that an initiation of force indeed occurred.

(I'm neglecting, of course, the controversial issue of preventing force by initiating force -- in the international context by invading Iraq to prevent supposed weapons of mass destruction, in the individual context by capturing a terrorist before they've actually committed an act of terror. This is dangerous territory that goes beyond the general responsive workings of legal procedure, and will be hopefully a topic I address another day).

In Hollywood our hero has a quick eye and thereby instantly achieves probable cause that our villain has reached for his gun and is threatening to fire. In reality, the evidence is usually far more dispersed and we must be far more careful, lest our supposed response to force actually be an initiation of force.

Since force is the central problem of politics, a political system, whether proposed or real, that cannot distinguish an initiation of force from a proper response to force -- that cannot distinguish an arrest of a person from a kidnapping, an arrest of goods from theft, and so on -- is worth less than the paper it's written on. And if it merely waves its hands and invokes the magic of "the government" or "the market" to solve all such problems, it is extremely lame -- and quite at odds with how our highly evolved common law legal procedures actually work. The common law does not, as the law of self-defense suggests, necessarily require "the government" for a legally forceful response to force. But neither, as we shall now see, do its legal procedures operate in any way resembling the laws of economics in a voluntary market.

Recall our Central Theorem of Politics -- we can't properly respond to a global initiation of force without a local initiation of force. We could deduce, if law could be deduced, that legal procedure thus might be full of local initiations of force -- and in fact it is. Legal procedure, in sharp contrast to good substantive law, does not involve merely negative rights "to be left alone," but in addition is full of positive rights. It is full of procedures for interfering with persons and property, both with the defendant who might have initiated force and with some third parties who are not accused of initiating force. The right to sue, for example -- necessary for the enforcement of any private substantive right -- is a bundle of positive rights that usually includes the right to compel a jury to sit and the right to compel witnesses as well as a right to compel the the alleged initiator in various ways. Proper response to the initiation of force would be extremely and quite unreasonably hobbled without these coercive mechanisms, these positive rights of legal procedure. And unless the disputing parties have arranged things ahead of time, the exercise of jurisdiction by our "responder to force," the court, is involuntary for at least one of them. Often the responder has to be backed by some kind of police force, or an extreme cases even an army, if justice is to be achieved. It is preventing the abuse of all this power -- including figuring out ways to minimize the power without overly reducing our ability to resond to force -- that is the central problem of politics.

Ideological purists can whine all they want about the supposed injustices of the coercion inherent in legal procedure, but "thou shalt not initiate force" is merely a useful summary of the substantive common law and in no way provides a useful summary of the procedural common law, much less a principle for its operation. The job of legal procedure -- and of good politics generally -- is to respond to initiation of force with its own local initiations of force in order to achieve justice: to punish the initiator of force and to provide restitution to his victim. Whatever form this response might take -- whether a nation-state making war or enforcing law through its courts, or parties who have previously agreed resolving their dispute through a private court, or a shopping mall security guard arresting a shoplifter, or our quick-draw Western hero -- whatever form response to force may take, it is crucial that law carefully defines the proper ways for making such responeses and that we put limits on these methods to prevent abuses. It's also crucial to realize that any princples by which we might do so will tend to be very different than those of the substantive law being enforced.

Microkernel government

Here are some considerations that went into the design of Juristopia. The overall goal of Juristopia is to improve the most important functions of government (especially defense and the abatement of public nuisances) while preventing the corruption, oppression, war, genocide, and other abuses that have so often come with police powers and taxation. Those evils have been particularly prone to occur when those powers are bundled into a locus of sovereignty, a la the personal totalitarianism of the Justinian Code, Bodin, and Hobbes or the parliamentary totalitarianism of Bagehot. These traditions of legal procedure, assuming political relationships are a matter of delegation rather than of property, have given us almost all of the worst in Western history: the Caesars, the Tsars, Napoleon, the Kaisers, the communist dictators, Mussolini, Franco, and Hitler among others -- based on the profoundly false and destructive assumption, derived from the legal procedure of the Roman Empire, that there must be "one person" who is "responsible" for all politics and law -- a person or (for Bagehot) small organization sitting at the top of a vast pyramid of principal-agent, usually boss-employee, relationships.

Although it discards totalitarian political structure and legal procedure, our proposed form of government is based on historically proven legal mechanisms. With the clarity of legal procedure it avoids the vague nonsense that often passes for political philosophy. Much of the political structure of Juristopia is based on highly evolved common law mechanisms such as property and contract, but these are used in the same basic manner as in the common law, rather than as misleading analogies or mere labels. Nor is there any hand-waving about how "the market" will magically produce efficient law. An efficient market is an outcome, not a cause, of good law. Some kinds of legal competition are good and some are pathological: Juristopia encourages the former and strongly discourages the latter.

Juristopia borrows from a number of historical political and legal systems, ranging from the modern constitutional administrative state to the monarcho-franchise system of late medieval England. Important design themes of Juristopia include separation and decentralization of powers. Its central design theme is the replacement of most delegation relationships (i.e. principle-agent or boss-employee) in politics with property and peer contract relationships. In its radical unbundling of power it satisfies many of the ideals of green libertarianism, minarchism and even anarcho-capitalism, yet it retains and even enhances the valuable functionality of modern government, such as environmental protection and defense. It strongly encourages the healthy legal competition that occurs before any dispute has arisen, such as choice of law and choice of forum, but severely discourages the unhealthy forum shopping that occurs after an injury has already taken place. It thus provides both default jurisdictions and the ability of parties to opt out of them, for future disputes between themselves, by contract.

The main innovations of Juristopia are (1) to revive a kind of jurisdiction that was once a strong bulwark against totalitarianism, namely jurisdictions held as property rather than by delegation, and (2) to combine these with the recently more common bulwarks against totalitarianism, especially separation of powers and a Bill of Rights defining limits on the exercise of franchise powers against individuals.

The result might be called, to borrow some computer science lingo, a microkernel government. A microkernel in a computer is a small program that contains only the most essential functions needed to manage a large number of other programs called "servers" that are conceptually independent of each other. Similarly, our governmental microkernel provides only the miniminum procedural functionality needed to handle franchises, a wide variety of which in turn handle the substantive law. Many of the advantages listed by Wikipedia for microkernel programs point up analogous advantages of microkernel government:

* "security: it is more secure as more operations are done in user mode than in kernel mode" -- similarly, the failure of one governmental function is much less likely to spill over into other functions or to cause general political failure. And since a small franchise requires fewer powers than a large government, any abuses of its powers are likely to be far less severe.

* "reliability: a simpler kernel design and functionality typically results in a more reliable operating system" -- similarly, the compartmentalization produced by property rather than delegation relationships increases the reliability of each function.

* "flexibility: new features can be added and unnecessary ones can be removed. This makes it suitable for both large and small systems" -- similarly, to add or remove a governmental function requires merely defining and funding a new franchise, or for a jury to defund it.

* "portability: most of the processor-specific code is in the microkernel, which makes it easier to port the kernel to a new platform" -- similarly, our new form of government can be applied in a wide variety of contexts -- as a new commercial jurisdiction, as the basis for an online game, or to augment or replace a traditional government.

As a final note, although decentralization is a key feature, this decentralization is generally one of subject matter rather than territory. Territory is far less important in Juristopia than it is in most of today's governments. Its federalism and localism takes the form of unbundling jurisdiction by subject matter rather than by territory. It is expected that franchises will operate over large territories and even globally. The physical boundaries of its jurisdiction will depend on its function and won't necessarily bear any relationship to the boundaries of other franchises. Indeed, Juristopia goes much farther than most forms of government in unbundling territory from government, thereby reducing the legal transaction costs of operating in multiple territories and increasing the healthy forms of legal competition.

(BTW, please let me know which spelling you prefer: :-)

Juristopia

A recent discussion has inspired me to articulate my own design for better government, long simmering in the back of my head and in various scribbles. My focus is on the "action end" of government where disputes are resolved and laws enforced, namely what in modern democratic systems we call the judicial and executive branches. Indeed except for the Articles of Incorporation, which is the constitution of Juristopia, its laws evolve mostly by the common law method of precedent. Subsidiary organizations are free to pass bylaws if they wish, as long as they do not contravene Juristopia's own Articles of Incorporation or disobey an Order of the Extraordinary Court. There is very narrow legislative role for the Board of Franchisors which will be stated below. The main democratic element is juries, which play an important role in limiting the exercise of governmental powers.

To simplify discussions of political power and rebellion, let's posit a system of magic Rings of Power, a la Tolkien. However, there is no master One Ring. (Tolkien surely had the correct answer for such a totalitarian power: it must be destroyed at all costs). Instead these are Rings of Discontempt that operate as follows:

(1) There are N Rings, where N is odd, say 9. Any Ring in the possession of an individual who possesses another Ring has no power (that includes the first Ring possessed -- the second renders the first impotent -- so that there is a strong disincentive to accumulate Rings).

(2) To operate the ring, a quorum of holders of the Rings, called the Court of Extraordinary Justices, touch their Rings together and prouounce the unique name of an individual to be punished for Contempt of Court, and pronounce a punishment.

(3) The quorum of joined Rings can administer the following magical punishments to the named person at any range:
(a) imprisonment in a magical jail for any specified number of time, requiring the aid of no human jailers
(b) instant and painless death

(4) The Rings confer on their wearers complete invulnerability to any kind of violence.

There is no other magic of any sort in Juristopia.

Like the Catholic College of Cardinals, the Extraordinary Justices choose their own successors. Board of Franchsisor members also choose their own successors, but have no Rings. Combined with the magical Rings, self-succession allows the Extraordinary Court to avoid the two main sources of political bias and pressure from other branches of government they now face: from their initial appointments by other branches, and by the ultimate ability of an executive branch to ignore a court order that it despises. An executive officer who refuses to execute a Court order is punished with Contempt of Court; the Rings insure that no rebellion against such punishment is possible.

The Articles of Incorporation state that the Court of Extraordinary Justices exercises only a very narrow jurisdiction, called the Extraordinary Jurisdiction. All Ordinary Jurisdiction, and all armed forces and police powers besides the Rings, are auctioned off to the highest bidder as franchises.
Franchises are property rights to exercise certain narrowly defined governmental powers, subject to limitations on the monopolistic fees or taxes they may charge, determined by juries selected by lottery from the feepayers or taxpayers.

A number of general kinds of franchises are specified by the Articles: public nuisance suppression, fraud suppression, armed forces, police forces, and common law courts are the five main categories of franchises, but there is a vast variety of possible jurisdictional "boundaries" for franchises within each category, and ownership of franchises may be bundled within or across boundaries in a dizzying variety of ways. The franchise market can thus assemble bundles that best persuade juries of feepayers to maximize fees. Each franchise collects its own monopoly fees from all persons within its territory; no franchise may charge fees that are more than what a jury considers "reasonable", including a reasonable profit. The general franchises stated in the Articles can be subdivided and narrowed, but not expanded, by the Board of Franchisors, which can pass bylaws that specify the subject matter and personal jurisdiction and territorial boundaries of each franchise. Some franchises are executive (similar to government agencies), and some are judicial (courts). The Board, like the Court, selects its own successors.

The Articles of Incorporation state that Juristopia Corporation itself does not have shareholders and may not earn a profit. Its only officers are members of the Board and Court, and the salaries of these are limited to salaries deemed "reasonable" by juries chosen by lottery from among Juristopia' taxpayers, as are its overall budget and the fees (taxes) it may charge within the territory of Juristopia. Its officers and employees may legally only engage in the business of Extraordinary Jurisdiction (Court) and writing initial franchise deeds (Board) -- they are are forbidden from engaging in ordinary business or Ordinary Jurisdiction.

All Justices and Board members must be eunuchs (if male) or artificially or naturally postmenstrual and sterile (if female), may own no amount or kind of property that a jury deems "unreasonable", must dispose of any properties that will create an imminent conflict of interest, and must recuse themselves from any legislation or cases that create a conflict of interest. They may not reproduce themselves in any fashion. The purpose of all this is to minimize potential biases, conflicts of interests, and motivations to use the Rings to expand power. (A digital protocol would be ideal if human judgment were not required to render verdicts and define new franchises).

The Articles state that all the jurisdictions and armed powers shall be auctioned off to the highest bidder as franchises. There would, for example, be Army, Navy, and Air Forces franchises empowered to charge a reasonable fee to the entire island for their services. There would be some public nuisance suppression franchises: for example there could be an air pollution franchise, allowing the franchise owner to regulate all pollution in Juristopia, similar to the U.S. EPA today. These franchises might be further unbundled into the particulates franchise, the sulfur dioxide franchise, the carbon dioxide franchise, etc. -- or alternatively the car tailpipe franchise, the electric plant emissions franchise, etc. These franchises would be allowed to auction off tradeable emission rights, or altenatively to charge emission fees. To the extent franchises are monopolies, or coercive, or both, the fees they can charge are limited to what are "reasonable" fees as determined by juries.

The Articles restrict the Extraordinary Court's jurisdiction to appeals in certain narrow (extraordinary) areas: choice of law and forum clauses, cases involving the property rights of franchises, and cases involving violations of a Bill of Rights, which would also be part of of the Articles. The Bill of Rights states a number of individual procedural rights, such as right to trial by juries, the right of juries chosen by a lottery of taxpayers to decide whether any taxes or franchise fees are reasonable, limits on search, seizure, and arrest, and so on that must be respected by any entity exercising a judicial or police power.

All Ordinary Jurisdictions are auctioned off to the highest bidder and can be freely traded. Among the Articles of Incorporation would be a strong requirement that Choice of Forum and Choice of Law clauses in contracts be enforced in a way much broader than current U.S. practice (e.g. allowing all torts of any kind between the two parties to be included in the scope of choice, overriding any franchise jurisdictions).

In the expanded form I propose, these will allow pairs of persons (individual or corporate) to opt out of the franchise that would otherwise have jurisdiction over future cases between them. This introduces a substantial degree of competition between franchises, and one might be able to assemble an AC-style system of insurance/protection companies from such clauses.

Under the Articles there are no Chief Justices, Presidents, or other lead executive officers that have special constitutional powers. Any Commander-in-Chief of the Armed Forces is optional and would be chosen by the various armed frachises themselves, as they may agree. The Court and Board are free to elect nominal leaders for administrative purposes if they wish.

The biggest open problem in Juristopia is how to stop the Extraordinary Court from cleverly interpreting the Articles of Incorporation to usurp the Ordinary Jurisdictions that properly belong to the franchises. Or from just using its control of the Rings to blatantly violate the Articles and enforce martial law and slavery for its own grand benefit and everbody else's pauperization, once enough people have settled on the island with high exit costs. A possible solution might include giving Extraordinary Juries, selected by lottery for each decision, their own set of Contempt of Jury Rings to enforce jury restrictions on the Court and Board.
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I have also neglected powers to make and enforce treaties with other governments. Since such treaties typical assume external sovereignty, the very low degree of internal sovereignty in Juristopia, which is otherwise a very good feature, may pose an interesting problem for treaties.

(N.B.: I crudely described a previous version of Juristopia here).

UPDATE: spelling change.