Wednesday, August 15, 2007
Our new omniscient savior
"I hear from so many people that realize that they're just invisible to their government ... but they won't be invisible to me."
Hillary sees me! All hail Clinton, full of grace.
UPDATE: This is, of course, nothing new.
Sunday, August 12, 2007
Ten ways to make a political difference
Ten ways to be an effective political activist, in a roughly decreasing order of importance:1. Be prepared to vote with your feet. Add interstate and international diversity to your social networks -- both personal and business. Lower your costs of exiting, if the need should arise, the jurisdictions that impose on the territories wherein you reside. Repeatedly in history -- from the old American frontier to the fall of the Berlin Wall to modern jurisdictions that specialize in international trade -- low exit costs have not only enabled liberty for the individual and the small group, but they have more than any other factor motivated the larger jurisdiction to provide the most important rights and freedoms for those who stay put. Grow interpolitical roots so that no single polity can chop down your tree. The good news is that modern communications, travel, and standardization of international languages (mostly on English) have made diversifying our social networks -- growing international roots -- far easier than ever before in history.
2. Influence our law in action. Serve on a jury and insist on protecting those who have not been proven to harm or intend to harm another.
3. Make your own law. For starters draft your own contracts, wills, prenuptial agreements, and property deeds. Even better if you can do this as a service for other people, but for that you will generally need to be a member of the appropriate legal guild. To draft law usefully, whether for yourself or others, you will need to learn the real law they don't normally teach in public schools: contracts, property, trusts and estates, and torts for starters, or else (often a second best choice to learning law yourself) retain the services of a sympathetic lawyer. Learn actual law -- don't turn into a whacko running around putting liens on other people's property based on interpretations of the UCC quite remote from what any judge would contemplate. But do start to make your own law. You cannot be free if you cannot make your own law.
4. Influence our law in action. Donate to or get involved with the Institute for Justice and other organizations of politically and legally savvy people defending our most important rights and freedoms in the courts.
5. Make your own law: use strong security to protect the people, relationships, property, and data you value. Learn to defend yourself and your loved ones with weaponry. Write and use cryptography, smart contracts, bit gold, digital cash, and other security protocols made possible by computer science.6. Tell us about your good research and good ideas: write a blog, comment on a blog, write papers.
7. Start a multinational small business.
8. Vote with your pocketbook -- buy and sell the goods, services, stocks
and bonds that promote liberty, and boycott those that promote its
violation.
9. Get involved in a lobbying group or political campaign where you can make a difference: usually a local campaign, but on rare occasions a national one.
10. Vote for and against politicians, but don't be fooled -- of all these
ten ways to make a political difference, voting in a political election makes the
least difference.
Wednesday, August 01, 2007
Government for profit
There are may examples of coercive political power both today and in history that don't fit in to the academic idea of "the state" as a "monopoly of force." Federalism, separation of powers, and many examples of legally "taking the law into one's own hands" are just three categories of examples. Here, we look at another, mostly forgotten but once ubiquitous category from history: political power wielded by private individuals or commercial organizations, with profits or the equivalent as a primary incentive of the organization.
These were entities quite different from both modern governments and modern economic corporations. These wielders of coercive power for profit combined the efficiency of private enterprise with the often ruthless coercion of government.
In the Roman Republic there were a number of corporations that were granted various kinds of political power. The most notorious were the publicani, the ruthlessly efficient tax farmers. Tax farmers were private contractors to governments or other coercively funded entities (such as colonial corporations, examples of which we will see below). Through history tax farmers have been famed and reviled for their efficient operations and ruthless treatment of taxpayers. The publicani, for example, deployed crucifixion and other forms of torture to extract financial information from their victims.
Tax farmers were, however, at least more honest than modern tax collectors. Tax farmers knew who their customers were -- governments or other coercively funded organizations. Like any other collection agency their customers were the creditors, not the debtors. They never propounded the pathetic mythology of some modern government tax collectors that their quite involuntary debtors, rather than their respective governments, are their "customers".
It is not well understood by Romanist moderns that monarchy was based, not primarily on Burkean romantic worship or the divine right of kings, but rather on the political property rights of an individual and his heirs. The laws of inheritance for a monarch were usually the same as those for land. Furthermore, at most places and times the monarch did not have a monopoly of political power, but rather by prescription or grant many other entities -- nobles, burghers, and corporations chief among these -- also held political property rights. Modern "titles" are the shell of a system that once involved extensive political property rights. As I described in my paper "Jurisdiction as Property", the most basic aspects of the medieval and Renaissance English legal system -- from which much of the modern writs, common law, and constitutions of England, Commonwealth and United States legal systems are derived -- were the laws that defined the rights and trespasses involving political property.
After a long lapse from the records of history, the Roman corporate form reanimated in the form both of independent cities -- municipal corporations that gave rise to republics -- and in forms like the Genovese maone and similar organizations in other late medieval Italian republics. The maone issued securities that acted much like stock shares, effectively paying dividends, although technically they were treated as debt instruments rather than ownership shares. They engaged in colonial conquests and administration, tax farming, or other subsets of governmental functions. A fuller account of the maone and their role in originating the modern corporation can be found here.
These were entities quite different from both modern governments and modern economic corporations. These wielders of coercive power for profit combined the efficiency of private enterprise with the often ruthless coercion of government.
In the Roman Republic there were a number of corporations that were granted various kinds of political power. The most notorious were the publicani, the ruthlessly efficient tax farmers. Tax farmers were private contractors to governments or other coercively funded entities (such as colonial corporations, examples of which we will see below). Through history tax farmers have been famed and reviled for their efficient operations and ruthless treatment of taxpayers. The publicani, for example, deployed crucifixion and other forms of torture to extract financial information from their victims.
Tax farmers were, however, at least more honest than modern tax collectors. Tax farmers knew who their customers were -- governments or other coercively funded organizations. Like any other collection agency their customers were the creditors, not the debtors. They never propounded the pathetic mythology of some modern government tax collectors that their quite involuntary debtors, rather than their respective governments, are their "customers".
It is not well understood by Romanist moderns that monarchy was based, not primarily on Burkean romantic worship or the divine right of kings, but rather on the political property rights of an individual and his heirs. The laws of inheritance for a monarch were usually the same as those for land. Furthermore, at most places and times the monarch did not have a monopoly of political power, but rather by prescription or grant many other entities -- nobles, burghers, and corporations chief among these -- also held political property rights. Modern "titles" are the shell of a system that once involved extensive political property rights. As I described in my paper "Jurisdiction as Property", the most basic aspects of the medieval and Renaissance English legal system -- from which much of the modern writs, common law, and constitutions of England, Commonwealth and United States legal systems are derived -- were the laws that defined the rights and trespasses involving political property.
After a long lapse from the records of history, the Roman corporate form reanimated in the form both of independent cities -- municipal corporations that gave rise to republics -- and in forms like the Genovese maone and similar organizations in other late medieval Italian republics. The maone issued securities that acted much like stock shares, effectively paying dividends, although technically they were treated as debt instruments rather than ownership shares. They engaged in colonial conquests and administration, tax farming, or other subsets of governmental functions. A fuller account of the maone and their role in originating the modern corporation can be found here.
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There is also a long history of armed forces for profit -- of mercenaries, private escorts, privateering, and sheer piracy. The main colonial companies, such as the East and West India companies of Britain, the Netherlands, and other colonial powers, deployed their own naval forces to protect their own fleets and on occasion to attack rival shipping. Among the first English joint-stock corporations were the temporary joint-stock companies set up by Drake and Hawkins to trade with the Spanish colonies (from the Spanish point of view to smuggle) and raid the Spanish gold and silver fleets.
Despite their profit motive, which put a premium on trading and raiding rather than defense, these private navies also successfully defended England. The battle of against the Spanish Armada was won, not by the Royal Navy (which did not yet exist), but by the joint-stock naval corporations of Drake and Hawkins. Drake's circumnavigation of the globe in 1577-80 was also funded by a joint-stock company created for the purpose. The profits came from trading/smuggling and privateering against the Spanish Main.
Most of the British colonies overseas (and many of those of Brtitain's rivals) were organized as corporations for profit, and most of these at one point or another issued stock. The political consequences of such corporate colonies were highly controversial and highly varied. In America, the corporate charters guarunteed "the rights of Englishmen"; that and a large frontier (and thus low exit costs) produced a very libertarian political system. Some American charters, such as the Massachusetts Bay Company, guarunteed that all freeholders of land within the corporation's land grant could vote on the corporate by-laws, which effectively became the laws of the land. This set the stage for two of the most distinctive characteristics of the later United States -- both its democracy (in contrast to their status in England, most early English settlers in America were landowners ("freeman") and thus entitled by charter to vote) and its written constitutions enforced by judicial review (because the charter -- in modern corporate parlance the articles of incorporation -- trumps mere legislation -- in modern corporate parlance the by-laws).
In Africa, by sharp contrast, the main business was slaving, and the charters of the African corporations authorized them to wield martial law, which they did with ruthlessnes. The most infamous of these African companies operated, however, after the era of individual slavery had ended. Instead of overt slavery the Congo Free State instituted a system effectively worse than slavery -- a tax system based on in-kind payments of rubber. The barbarous cruelty of the resulting system was immortalized in Joseph Conrad's Heart of Darkness.
In between these political extremes, the East India Companies and many other colonial companies operated across the globe, at first assisting local entities in military, tax collecton, and administration, but eventually taking over these governmental functions and reaping often immense profits as a result. They brought literacy and very efficient and modern administration but also often engaged in an exploitation that was widely percieved as so ruthless that the East India Company became profoundly unpopular and was eventually nationalized.
Administration by the colonial companies was usually far more efficient, for example in terms of European manpower deployed, than the later administration by the governments of European powers when these companies were nationalized in the 19th and 20th centuries. By the end of the 18th century these companies had become highly unpopular in government circles. The rise of democracy and the Romanist ideology of the monolithic state spelled their doom. Ideologists and scholars as varied as Adam Smith, Edmund Burke, and Karl Marx railed against the depradations of the colonial corporations. For Marx these epitomized the evil of capitalism generally, whereas Smith and Burke were careful to distinguish the wielding of coercive political power, which they found particularly destructive in this form, from the wielding of voluntary economic power, which they found highly beneficial.
Besides the links above, here are some further references:
E. Burke, "The Nabob of Arcot's Debts" -- a screed against the exploitation of "the Carnitic" (part of modern India) by the British East India Company
Charter of the Massachusetts Bay Company (1628)
G.R. Elton, England Under the Tudors, Third Edition (1991)
H.C. Hockett, The Constitutional History of the United States, 1776-1826 (despite the title has some good descriptions of pre-Revolution developments including corporate colonies and judicial of local legislation against the corporate charters)
A. Smith, The Wealth of Nations (esp. Book 4, Ch. 7 "Of Colonies")
N. Szabo, Charters and Judicial Review
N. Szabo, Origins of the Joint-Stock Company
N. Szabo, Jurisdiction as Property
Tuesday, July 31, 2007
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.
Sunday, July 29, 2007
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.
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.
Tuesday, July 17, 2007
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:
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 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:
- 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).
- 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.
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.
Monday, July 09, 2007
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.
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.
Thursday, June 28, 2007
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).
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).
Monday, June 11, 2007
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.
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.
Saturday, June 09, 2007
In defense of the judicial branch
Mencius Moldbug repeats a currently popular quote from Thomas Jefferson:
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.
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.
Saturday, June 02, 2007
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.
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.
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