Kudos to Google

P.S. Huff

They've drawn up a privacy policy and terms of service that someone might conceivably read.

Constitutional Bloopers

P.S. Huff

Some fun facts about the Constitution:

1. It is easier to remove a president from office than it is to overturn a presidential veto. The latter takes two-thirds of both houses of Congress; the former takes only a majority of the House and two-thirds of the Senate.

2. If the vice president is impeached, he is entitled to preside over his own trial in the Senate. (If, on the other hand, the president is impeached, the chief justice presides.)

3. The president has plenary power to pardon himself for federal crimes (though he cannot immunize himself against impeachment).

4. Article IV, §3, cl. 1 reads: "New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress." Taken at face value, this would seem to prevent the formation of a new state even within the (prior) geographic boundaries of a consenting state.

5. The First Amendment begins "Congress shall make no law . . . ." Yet the Constitution makes treaties as well as statutes "the supreme Law of the Land."

6. The Eighth Amendment forbids "excessive" fines, but it prohibits only "cruel and unusual" punishments.

7. Under the Fourteenth Amendment, whenever the right to vote in elections to certain offices is

denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The Nineteenth Amendment forbids sex discrimination in the franchise, but does nothing (by its terms) to broaden this rule. Neither does the Twenty-Sixth Amendment, which forbids age discrimination in the franchise among those eighteen and up.

Well, have I missed anything?

Gene Callahan Will Be Thrilled

P.S. Huff

"An Austrian Perspective on the History of Economic Thought, the capstone of Murray Rothbard’s career, is one of the greatest works of intellectual history written in the twentieth century." — Blurb for a Course Taught by David Gordon

Reinventing Presidential Debates

P.S. Huff

This post by the always-interesting Ann Althouse got me thinking about just how useless post-primary presidential debates are in this country. Nothing intelligent is ever said on either side.

I suggest it's time for a new paradigm. Instead of the two presidential candidates "debating" one another for an hour and a half, each presidential candidate should have to debate a non-candidate who (a) does not hold any public office and (b) knows what he is talking about.

Question: Who would you make each candidate debate? I propose Glenn Greenwald versus Barack Obama, and Ron Paul versus whoever gets the GOP nomination.

Gingrich Wins South Carolina

P.S. Huff

Well, well, what hath South Carolina wrought? I admit that the outcome caught me unawares. Like everyone else, I saw the polling results, but it seemed to me there had to be a defect in them. To nominate Gingrich as the party's standard-bearer is a policy so contrary to logic that I thought surely South Carolina Republicans would refuse the bait. Gingrich is the only candidate remaining who is less electable than Ron Paul.

Electability is not everything, of course. Paul is politically radioactive, yet a double-digit defeat with him is preferable to a rousing victory with anyone else. But in the case of Gingrich there are no saving graces. He is as unprincipled as Romney, as impulsive as Santorum, and as unlikeable as Judas Iscariot. If he snatches the nomination, I predict a replay of 1964.

GOP primary voters, alas, have precious little sense. In 2008 they had three articulate candidates to choose from: Giuliani, Romney, and Huckabee. Yet somehow McCain secured the nomination. Well, all I can say in consolation is that the party deserves everything it is about to get.

"Corporations Are Not People"

P.S. Huff

No creed is too absurd to win the assent of newspaper columnists. In today's Boston Globe, Jim McGovern and Jeff Clements haul out the tired line that "[c]orporations are not people." They say this in the course of denouncing Citizens United—a Supreme Court decision involving a constitutional guarantee that is not even limited to "people" by its text. Here are a few constitutional guarantees that are limited to people:

No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Under the populist jurisprudence of McGovern and Clements, Congress would have a free hand to seize outright the property of any corporation in the land, without a trial and without a hearing.

McGovern and Clements might respond that this would affect the rights of actual people—namely, stakeholders in the corporation. That won't do. By the same reasoning, restrictions on corporate speech involve the free-speech rights of a corporation's owners and employees.

The sloganeers bemoaning corporate personhood seem not to have the slightest grasp of the implications of their argument. If corporations have no constitutional rights, what are we to say of the New York Times and the Wall Street Journal? How will Regnery and Crown Forum fare in this brave new regime? Not well; and neither will the rest of us.

Hitler Reacts to SOPA

P.S. Huff

It seems he is not pleased:

A Trivia Question

P.S. Huff

How many decisions of the United States Supreme Court are reported in the first volume of the United States Reports?

Secession and the Consent of the Governed

P.S. Huff

According to Brad DeLong, Ron Paul "at some deep level" does not think blacks are people. His evidence? Paul had the audacity to invoke the "consent of the governed" in the course of defending Southern secession.

That would indeed be a strange argument to make, if the South had seceded in response to a federal edict abolishing slavery. But as DeLong surely knows, that is not what happened. The South seceded "over slavery," to be sure; but there was no imminent threat of abolition.

The Simplest of Free Elections

P.S. Huff

"I order you to hold a free election, but forbid you to elect anyone but Richard my clerk." Writ of King Henry II, quoted in W.L. Warren, Henry II (1973), 312.

Best Article Title Ever?

P.S. Huff

"Abortion Law: What Would Solomon Do?"

The Trouble with Zeno's Paradoxes

P.S. Huff

It is one of the great paradoxes of antiquity. Achilles, of Trojan War fame, attempts to overtake a tortoise in a race. Alas for Achilles, he cannot possibly succeed. In order to pass the tortoise, he must first catch up with it; but by the time Achilles reaches the tortoise's starting point, the tortoise will have moved some distance, however small. Thus as the race continues, the tortoise once again enjoys the advantage of a head start. And now the process simply repeats itself; and so on, ad infinitum. Achilles, it turns out, must complete an infinite number of steps before he can pass the tortoise. If we add the additional assumption that an infinite number of steps cannot be completed in finite time, it follows that Achilles will never be able to pass the tortoise.

Less fun, but more fundamental, is the dichotomy paradox. Picture a runner situated 1,000 feet from the finish line. In order to move 1,000 feet, he must first move half that distance. Now a mere 500 feet remain; but in order to move 500 feet, the runner must move half that distance. And so on, ad infinitum. To complete a simple journey, our unfortunate runner must complete an infinite number of sub-journeys. If this is impossible, it turns out that our runner cannot move at all (we could have made the original distance as small as we wanted).

With these and two other paradoxes, Zeno aimed to show that motion was logically impossible. His arguments do not seem to have won him many converts, but they secured him a place in Aristotle's Physics, and well over two millennia later intellectuals are still babbling about him. The list of refutations is long, and glorious, and always growing. But suppose we put intuition and the occult proofs of mathematicians to the side, and adopt Zeno's conclusion as a working hypothesis. On this view, our perception of motion must be an illusion of some kind—for we certainly do perceive motion, logically impossible though it may be.

Unfortunately, there is less to this explanation than meets the eye. Zeno, we know, has argued that motion is logically impossible. But what is it about Zeno's argument that allows motion to take place in the realm of perception but not in the realm of "reality"? Is the idea that the space of the physical world is qualitatively different from the space of perception? If so, what is that difference, how does it relate to the argument, and what is to prevent us from stipulating that physical space has the same character as psychological space?

But a more aggressive line of attack suggests itself. One way of understanding reality is to model it off of our sense perceptions. In this view, when we say that something is (physically) "real," what we mean is that a hypothetical observer, if present, would perceive it. I don't claim that this is the only way of understanding reality, but it doesn't seem to lead to any absurdities.

Now if this concept of reality is accepted, the possibility of perceived motion and the possibility of actual motion clearly stand or fall together. Does Zeno's argument now fail? If so, there is no reason to accept that motion is impossible (for we can simply adopt this fairly straightforward understanding of reality). If, on the other hand, the argument does not fail, why doesn't it show that even illusory motion is per se incoherent?

Since Zeno is not here to respond, I claim victory by default.

Personal Statements

P.S. Huff

I hate personal statements with a passion. I am never more unproductive than when trying to cobble one together; and when I'm finished, I never like what I've written.

The various advice pages on the internet are of little help. I refuse to write the sort of two-page novel that evidently passes for a great personal statement in some quarters. Well, back to the drawing board.

Dred Scott and Substantive Due Process

P.S. Huff

Once a myth has appeared three times in scholarship, no argument, however powerful, will ever succeed in killing it. I was reminded of this fact the other day when I saw Kevin Gutzman report matter-of-factly that Pierce v. Society of Sisters "relied on the concept of substantive due process first enunciated in Dred Scott v. Sandford (1857)." That substantive due process was first dreamed up by Chief Justice Taney in Dred Scott has become a cherished bit of folklore in some parts of the legal academy, but it is pure fiction.

Scott was based on the "vested rights" flavor of substantive due process. John Harrison has examined this doctrine in some detail; in a nutshell, it holds (i) that a person's life, liberty, and property cannot be taken away without due process of law, (ii) that due process of law consists of judicial procedure, and (iii) that because legislation is distinct from judicial procedure, legislation that directly deprives a person of life, liberty, or property is necessarily illegal and void. Because the phrases "law of the land" and "due process of law" have, in the American tradition at least,* always been equated, we can legitimately cite Townsend v. Townsend as an early case using this variety of substantive due process. Although the court in Townsend observed that the act at issue "t[ook] away no property" and hence was unaffected by the state's law of the land provision, it nonetheless discussed that provision in the following terms:

Our bill of right, sec. 8. declares, "That no man shall be deprived of his property, &c. but by the judgment of his peers or the law of the land." . . . . Property in possession by this clause is secured to the owner, so that it cannot be taken from him but by due course of law, in a court regularly constituted and proceeding by the standing rules of law; not by act of assembly, depriving the owner of it for the benefit of some other individual.

Nor is this a lone exception.† In Hoke v. Henderson (NC 1833), for example, we read that the "terms 'law of the land' do not mean merely an act of the General Assembly. If they did, every restriction upon the legislative authority would be at once abrogated." And in Taylor v. Porter (NY 1843), the Supreme Court of Judicature of New York explained that "The words 'by the law of the land' . . . do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense."

Taylor is interesting for another reason. It found that this same restriction on legislative authority was also imposed by the state due-process provision:

The words 'due process of law,' in this place, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property.

Scott's substantive-due-process reasoning simply follows in this tradition. After explaining that the Federal Bill of Rights applies in U.S. territories, Chief Justice Taney continues:

[T]he rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Whatever you think of Taney's argument, it was not particularly innovative. This is pure vested-rights due process, and by 1857 vested-rights due process had celebrated many birthdays.

Appendix: Some Cases Worth Examining
Bowman v. Middleton, 1 Bay 252 (S.C. 1792).
State v. --, 1 Haywood 38 (N.C. 1794).
Lindsay v. Commissioners, 2 Bay 38 (S.C. 1796).
Gardner v. Village of Newburgh, 2 Johns Ch. 162 (N.Y. Ch. 1816).
Townsend v. Townsend, 7 Tenn. 1, 17 (1821).
Wilkinson v. Leland, 27 U.S. (2 Peters) 627, 658 (1829).
Hoke v. Henderson, 15 N.C. 1 (1833).
Taylor v. Porter, 4 Hill 140 (N.Y. 1843).
Rhinehart v. Schuyler, 7 Ill. 473 (1845)
Brown v. Hummel, 6 Pa. 86, 91 (1847).
Wynhamer v. People, 20 Barb. 567 (NY 1855).
State v. Keeran, 5 R.I. 497 (1858).
Sadler v. Langham, 34 Ala. 311 (1859)

Source Note: The argument in this post is not, of course, original to me. For fuller discussions of the origin of substantive due process, see the great articles of John Harrison, Substantive Due Process and the Constitutional Text, 83 Va. L. Rev. 493 (1997), and James W. Ely Jr., The Oxymoron Reconsidered, 16 Const. Comment. 315 (1999). I am simply trying to do my part in burying a stubbornly persistent legend.

_______________________
* — I know there is some dispute as to whether Lord Coke got it right when he equated the two, and over whether he even meant to equate them. But what's important is that the colonists certainly thought he had equated them, and they took his word for it.
† — Although less clear, an obscure South Carolina court opinion from 1792 may have relied on "substantive law of the land" in holding the legislative transfer of a land title from one person to another void. See Bowman v. Middleton, 1 Bay 252 (S.C. 1792). But I admit that the report is ambiguous. (The court, we read, found that "it was against common right, as well as against magna charta, to take away the freehold of one man and vest it in another." Is that a reference to the law-of-the-land principle of English law, to the law-of-the-land provision of the state constitution, or to something else entirely? It is hard to say.) Cf. the other early cases listed in the appendix.

Today at the Supreme Court: Golan v. Holder

P.S. Huff

The Supreme Court of the United States, from its marble temple in Washington, D.C., today announced its decision in Golan v. Holder. By a vote of 6 to 2 (Kagan excluding herself), the justices held that a statute placing hitherto public-domain works under copyright is within Congress's power under the Copyright Clause. The First Amendment, the majority further decreed, poses no barrier to this retroactive shackling of the public domain.

The Copyright Clause vests in Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It is a curiosity that the Court continues to treat the boundaries of this clause as if they were meaningful. Under the Court's Commerce Clause jurisprudence, it is impossible to see why Congress should not have plenary jurisdiction over intellectual property, the Copyright and Patent Clause notwithstanding. But in any case, the Court has now decided that the copyright power itself need not yield to the public domain. If the majority's reasoning as well as its holding is taken as definitive, Congress could tomorrow establish a retroactively applicable copyright term of one hundred thousand years.

What about the First Amendment's "freedom of speech, [and] of the press"? The Court pays it little mind. "[N]othing," we read, "in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain."

Golan divulges one of the worst-kept secrets of constitutional law—that whenever there is a plausible basis for striking down a law, it will almost always be upheld. To this I append the following corollary, also borne out by Golan: that in the course of upholding such a law, the Court will use arguments that, if applied consistently, would have required it to uphold virtually every statute it has ever struck down.