Why Libertarianism and Democracy Kind of Hate Each Other

Does morality have a place in law?

In a sense, we are all libertarians by default. As to issues that are morally neutral to us but repugnant to others, our response is to respect their right to feel righteous indignation, but to go work it out someplace else and leave me alone. The good Kantians among us have the wherewithal to apply that same response when the tables are turned. That is, to be a libertarian is not to be amoral, it is simply to be a restrained moralist, to work out morality in private relationships or institutions, anywhere but through law and politics.

But I would say two things about that. First, that libertarians are not as value-neutral as they would have us believe. And second, that there is no good reason that the majority should not be entitled to impose their moral views.

At some point, we arrive at the question of whether libertarianism and democracy can coexist. Under a pure libertarian theory, democracy would ultimately be replaced by an over-inflated substantive due process doctrine, a sort of hyper-pragmatic political empiricism. Law & economics, except law having been eaten by a carbo-loading economics who’s busier than a one legged man in an ass kicking contest scratching away at the blackboard to see if yours and my rights are borne out in the math. In the absence of evidence, no legislation is permissible. You and your scruples don’t have to go home, but they can’t stay here.

Libertarianism is to political theory as prog rock is to music. If you’ve got the flare for it, it can be fun to decipher how some atonal piece in 9/4 time that's too busy cramming in more and more notes to bother with things like “choruses” or “lyrics,” can still be recognizable to human beings as music. But the reality is that, by and large, people will always prefer a straightforward verse-chorus-verse-chorus that fades out in three minutes. Similarly, Americans will never give up their beloved and intuitive right to self government in favor of a convoluted system that only permits laws supported by pointyheaded rights theories or complex social utility balancing acts. Godspeed You Black Emperor! will never be ready for prime time, and neither will libertarianism.

This is the idea at stake in the gay marriage fight. The outcome--whether gays get the right to marry--is truly secondary. What is imperative is that we protect and respect the democratic process. And that is true even if the democratic process doesn't get us to a desired result as quickly as a theory like libertarianism. After all, there is no well-defined principle that would compel the legal endorsement of gay marriage (even as people find it more and more culturally acceptable) that would not at the same time also compel the legal endorsement of polygamy or incestuous marriage (which people still find culturally repugnant). (See here and here.) Thus, libertarian theory will not actually yield us a very desirable solution; the only theory that permits the coexistence of lawful gay marriage and unlawful polygamy and incestuous marriage is the democratic theory. Democracy is inelegant, but then again, so is human nature.

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Regulation Doesn't End Greed, It Just Requires More Gladhanding

Steve Bainbridge provides some good explanations why more regulation doesn't make greed go away, it just modifies the way in which it is expressed, i.e., through rent-seeking. The "invisible hand" is no longer such -- it's just busy in back rooms making deals.

Putting the government's spanner in the works is unwise for another reason. Used to be the government would shake its fists at the private sector in moral outrage, but ultimately recoil to its own domain. With an effectively limitless federal jurisdiction, finger wagging is now followed by swift, comprehensive, and mindless reform. Government would be better off had we left a few teeth in the Commerce Clause: the economy can't be your scapegoat when you can claim control of it at whim. Kind of reminds me of the image of the dog chasing the car who wouldn't know what to do if he caught it. Except there are probably more things a dog can naturally do with a car than our federal government can do with the economy.

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Victory Against the Agran Political Machine

A recent California Court of Appeal decision, briefed in large part by yours truly, gave Larry Agran and his cronies a good lashing and ordered them to pay my attorneys' fees. OC Register article on the case here.


UPDATE: Here is Frank Mickadeit's article on the case, including some choice language from the opinion. Here is a synopsis of the case by Ben Pugh, the lead attorney on the case.

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Distrust of Government Does Not Imply Trust in Markets

This recent post from E.D. Klain points out one of the subtle yet critical flawed assumptions about conservatism: that distrust in government means placing trust in markets. In a way, the assumption is natural, and perhaps in some ways correct. Certainly, we have to put our "trust" somewhere, in the sense that public choices have to be made in one place or another. But markets are not to be preferred to government on the basis that they yield better results. They certainly do in some areas, and we hope for the best in others. The real reason we ought to prefer markets, however, is because markets are fair. Fair as in blind, anachronistic, non-empathetic. Process-oriented rather than ends-oriented. Markets produce a brand of fairness as close as possible to the sort produced by nature itself. Thus, markets will harm you in near the same way as a tornado will. It's nothing personal. And in either case, you are about as likely, and have about as much cause, to shake your fists at the sky than at some person.

The real problem, of course, is not that liberals make this erroneous assumption (i.e., that markets somehow possess some superior ability to produce substantive fairness), but that conservatives do. When we begin to think that we can have our heaven on earth, whether through a centralized government or through an idealized "market" that will give us our hearts' desire, we are headed for disappointment.

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The Booming (Public) Service Industry

John Derbyshire shares the details of a few of New York's 1,325 six-figure pension recipients:

• James Hunderfund, an employee of Commack school district, will retire September 1 with a monthly pension of $26,353.75. (Nothing hunderfunded about his pension plan, ho ho.)

• Richard Brande of Brookhaven-Comsewogue will also be heading for the golf course September 1 with a monthly pension of $24,222.43.

• William Brosnan cleans out his desk at Northport-East Northport July 1, and for the rest of his life will trouser a monthly pension of $19,058.80.

No offense to these guys — well, not much offense — but they are small-town education bureaucrats. Not only will they be getting annual pensions in the quarter-million-dollar range for the rest of their naturals, they are getting these numbers by law. If New York State's pension-fund managers goof on the investments, or the market craters, we taxpayers have to make up the difference.

It's not just edbiz either, though of course edbiz exhibits the greatest outrages. (Can't we please just GET RID OF PUBLIC EDUCATION?) Local-gummint seat-warmers are on the same gravy train.

• Dvorah Balsam of Nassau [County] Health Care Corp., annual pension $191,380.32

• Stanley Klimberg of Long Island Power Authority: $191,380.32.

• Gerald Shaftan, Nassau Health Care Corp. again, $181,457.76.

These folk are all, as no doubt they would be proud to tell you, "public servants." The idea behind that phrase is that they are like butlers or housemaids, placing themselves willingly at the beck and call of us, the sovereign public. So how come we, the sov. pub., spend our twilight years clipping coupons in rusting trailers in the Ozarks while our servants enjoy the beach condo in Maui?

From the looks of it, CEO's and public servants might soon be passing each other in their government-controlled compensation elevator ride.

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Words Are Cheap

From Fox News:

The Senate has unanimously passed a resolution apologizing for slavery and racial segregation in the U.S. and sent the measure to the House.

Something about that just seemed rather silly. And then this made it obvious :

The resolution passed Thursday includes a disclaimer saying that nothing in it supports or authorizes reparations by the United States.

Oh, you mean the apology was all a stunt. That makes sense. Apologize away, so long as it doesn't cost anything.

[A much more thoughtful post on the subject from Stephen Bainbridge here.]

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It's Not a Bad Risk Just Because You Lose Sometimes

Said Obama:

“A cascade of mistakes and missed opportunities” over decades led to the present problems, the president said. “It was easy money, while it lasted.” But, he added, “These schemes were built on a pile of sand.”

But who knew it was a "pile of sand"? Surely, there were those who thought it was too good to be true, that the gravy train would end at some point. But who was going to tell willing lenders and willing borrowers not to transact, not to keep driving the economy up, not to increase homeownership, based on some wonk's grumpy prognostications? Certainly not politicians. Indeed, lenders would have been called worse names were they to have imposed some arbitrary normative notions about risk to justify turning down loans. The math, best as anyone could tell, was solid enough. The market, according to our then-best understanding of how it worked, determined what happened. We now understand that the market doesn't hold up under the fancy math that seemed to work so well. But we didn't know that then. We kept playing what our best understanding indicated was the smart bet. We doubled down on eleven and split aces and happily collected our winnings. Now that it's turned out there were jokers in the deck, we'll have to rethink our strategy. That will happen the same way every other wealth-generating idea has occurred: through the market. The market ferrets out cracks in economic systems and recalibrates itself towards efficiency. We don't need government to find holes in economic theories any more than rain needs it to find holes in a leaky roof.

[Clarification: A reader pointed out that my post might be misunderstood to mean that little or no fault belongs to the crooked mortgage brokers and other unscrupulous practices within the financial industry. Perhaps I should be more careful: I do not mean to ignore such sordid practices, or suggest that they are an acceptable brand of "self-interest" that fuels market activity. On the other hand, that was not what Obama was referring to. He was talking about systemic flaws in the finance industry that created what seemed to be “easy money.” I took that to mean, for example, that someone should have intuitively known that the Gaussian copula function that led to the mortgage-backed-securities debacle was implicitly flawed, and done something about it. (A great article on that here.) That formula, and the basic urge to capitalize on it, were not borne of some excessive greed. By all indications, it allowed us to tap into a great amount of seemingly reliable wealth. Who would have listened to admonitions against such manifest destiny?]

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Vexatious ADA Litigants Back in Business in California

On Friday, the California Supreme Court gave vexatious wheelchair litigants their groove back in Munson v. Del Taco, Inc., overturning an earlier 2006 decision in Gunther v. Lin that required a showing of intent in order to qualify for the minimum $4,000-per-infraction awards. Gunther had held that California's Unruh Act, the California civil rights law, required a showing of intentional discrimination: the mere fact of disparate impact on a suspect class was not enough. However, in 1992, the Legislature amended the Civil Code to make violations of the ADA also a violation of the Unruh Act. Thus it happened that, when serial plaintiff David Gunther paid a visit to Lin's Jack-in-the-Box restaurant, he experienced the following violations of his newly incorporated civil rights: uninsulated pipes under the bathroom sink, and a mirror mistakenly left by an employee (without Lin's permission) higher than the required specifications.

As the Santa Ana Court of Appeal noted, ADA violations are hyper-technical, and practically impossible not to violate at some point or another:

Other ADAAG's [ADA Architectural Guidelines], however, do not implicate any intentional conduct at all, such as the requirement that the pipes underneath the sink in a public restroom be wrapped with insulation, or the remarkable requirement that any visual alarms be exactly 80 inches above the highest floor level within the space or exactly six inches below the ceiling, whatever is lower. For example, a customer using a wheelchair who entered a public restroom before a contractor had finished working on a remodel of it and had gotten around to wrapping insulation on the pipes under the sink would find a restroom in “violation” of the ADA even though the owner was remodeling the restroom precisely in order to ensure that wheelchair customers had equal access to its toilet facilities.

In fact, the ADA itself does not even permit private litigation. That would seem, well, stupid. And so the court charitably declined to impute such stupidity onto our own Legislature.

And it was precisely because it was so easy for businesspeople—particularly small businesspeople—to inadvertently violate the ADA that Congress limited the circumstances under which they might be sued for such a technical violation. Under the ADA, a private individual suing a businessperson has no right to damages absent intentional discrimination. . . .

By contrast with the federal ADA, California's section 52 allows private parties to seek damages, and in fact even provides for an automatic minimum penalty—now up to $4,000—when the statute is triggered.

. . . .

To interpret what is now subdivision (f) of section 51 to provide for automatic penalties for even the most technical violations of the ADAAG's would contravene the rule that no statute should be interpreted so that it becomes redundant, in this case the statute made redundant being section 54.3. . . .

. . . .

Private enforcers of the ADA are presented with a choice between the strict liability regime of section 54.3 or the regime requiring intentional discrimination of section 52. The alternative interpretation, as a number of federal courts have already indicated (e.g., Doran v. Del Taco, Inc. (C.D.Cal. 2006) 2006 WL 2037942), has led to unconscionable abuses.

Indeed, in Gunther, there was no intentional discrimination. Gunther even conceded as much.

There is also no question that defendant Lin never intended to violate the ADA. In his answer to Gunther's complaint Lin claimed that Gunther had entered the restroom “before our handyman had finished his work” of wrapping insulation around the pipe under the sink. Moreover, normally the restroom never has mirrors for anybody (because the mirror was subject to vandalism); an employee simply hung one by mistake.

The Supreme Court noted that Gunther's reading of the statute was a reasonable one.

As a purely linguistic matter, therefore, another reasonable interpretation of section 51, subdivision (f) is that it makes all violations of the ADA violations of section 51 but, together with section 52, authorizes a private action for damages under the Unruh Civil Rights Act only for ADA violations involving intentional discrimination. This is the reading embraced by the Gunther court

But Gunther's reading was not the one most likely to jibe with the Legislature's likely intent. Instead, the Court delved deep into the legislative history and tracked the various changes over the past decades to glean the Legislature's intent in incorporating the ADA into California's civil rights regime. The Court concluded that, while there were several reasons suggesting that the Legislature intended plaintiffs to base their claims on Civil Code section 54.3, which would require a showing of intent, the better supported conclusion was that the Legislature purposely overlapped the statutes--even though this meant that no litigant in his right mind would go forward with a claim that required a showing of intent when he could choose to plead one that didn't.

On the other hand, the Legislature recently enacted new legislation to curb potential abuses.

Most pertinent here, the new legislation (applicable to claims filed on or after January 1, 2009 (§ 55.57)) restricts the availability of statutory damages under sections 52 and 54.3, permitting their recovery only if an accessibility violation actually denied the plaintiff full and equal access, that is, only if ―the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion‖ (§ 55.56, subd. (b)). It also limits statutory damages to one assessment per occasion of access denial, rather than being based on the number of accessibility standards violated. (Id., subd. (e).)

Munson at 21.

But what exactly does the new Civil Code section 55.57 require to turn away those would-be vexatious litigants?

(a) Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion.
(b) A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion.
(c) A violation personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation.

Ah, yes. That will send those serial plaintiffs packing. I'm sure they will be quite at a loss wondering how in the world they might try to convince a jury that a poor chap in a wheelchair sustained sustained "difficulty, discomfort, or embarrassment." Handy work indeed.

As Oliver Wendel Holmes said, "if my fellow citizens want to go to Hell I will help them. It is my job." It is now a job that our California Supreme Court seems perfectly comfortable performing, if this case is an indication.

All this raises the more interesting question that I will try to tackle in a subsequent post, which is, how does a court, such as the Munson Court here, muster up the motivation to overturn a perfectly well-reasoned decision, like the Gunther one, in order to open up floodgates of vexatious litigation? It does seem like this is one of the "5%" of really tough cases that is susceptible to more than one outcome. (Gunther's attorney, a colorful fellow, was less equivocal, calling Gunther "a results-driven, ass-backwards judicial activist decision from the start.")

At any rate, if it takes some sort of "activism" to get to the outcome from where legal analysis ends, what sort might be appropriate, or at least, more appropriate than others?

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Yes, Mr. President, Some People Really Do Still Think Big Government Is A Bad Thing

In pushing his health care agenda, Obama responded to Republican opposition as follows:

“Right now a number of my Republican friends have said, ‘We can’t support anything with a public option,’ ” he said. “It’s not clear that it’s based on any evidence as much as it is their thinking, their fear, that somehow once you have a public plan that government will take over the entire health care system.”

Two thoughts: First, perhaps folks wouldn't be so worried about Obama's government "tak[ing] over the entire health care system" if he wasn't already taking over everything else.

Second, Obama is right to note that the question is not whether the government can provide a viable, universal health care solution. We already seem oddly comfortable after having jumped from one paper trap (mortgage-backed securities, credit default swaps, Gaussian copula functions, etc.) into another (massive federal borrowing leading to impending hyper-inflation). So I doubt we will have have trouble finding the stomach to print the money it will take to make Obama's government health care utopia happen. At least until the bottom falls out.

But the critical objection is not that we are losing sight of economics principles, but of first principles--of self-determination, hardiness, individualism. I quoted this bit from Mark Steyn a few weeks ago, but it is worth the repetition:

But forget the money, the deficit, the debt, the big numbers with the 12 zeroes on the end of them. So-called fiscal conservatives often miss the point. The problem isn't the cost. These programs would still be wrong even if Bill Gates wrote a check to cover them each month. They're wrong because they deform the relationship between the citizen and the state. Even if there were no financial consequences, the moral and even spiritual consequences would still be fatal.

Health care is indeed a problem. And unchecked human greed is at the root of much of it. Greedy people are the source of a lot of the world's problems (and a lot of the world's successes). Of course, government is nothing more than the legitimized exercise of will by a small group of people. And while we at least know that CEOs are in it for the money, we can never be quite sure what in the world a politician has his eye on. In that way, while greedy, unscrupulous individuals are bad, we can be certain that politicians are much, much worse.

Thus, why do we believe so easily that the solutions to our problems lie in government? Of course we should "fear" your creeping government, Mr. President. That is the natural order of things.

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Miranda Goes Mobile

The Weekly Standard reports that the Obama Justice Department has ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan. While one could hardly complain about spreading the United States' gold standard of criminal justice, this practice seems like it could become problematic. Miranda informs suspects that they "have a right to remain silent," and that they "have a right to an attorney." Actually, they probably don't have such rights, as they are non-citizens outside of the United States. But once the government tells someone they can expect something, it has the practical effect of becoming a right vested for all eternity. See, e.g., welfare.

H/T Bart DePalma

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Blogging Is Silly Enough Without Anonymity

An online spat between NRO's Ed Whelan and a formerly anonymous blogger, now outed as South Texas College of Law professor John Blevins (see links here, here, here, and here), got me thinking about the subject of anonymous blog posting. I never thought about doing it here, and I got nervous for a bit after considering Blevins' reasons for seeking to maintain anonymity. Perhaps it's a good idea -- I'm a practicing lawyer, and it's possible my views on things could create professional discomfort or even conflicts. And as I noted at one point in discussing gay marriage, I always fear one of my gay friends will misinterpret my legal and political views as imputing some sort of personal intolerance, which could not be further from the truth.

On the other hand, knowing that my name will be attached to my posts adds significant motive to more closely scrutinize my own thoughts and analysis, and to edit and tailor my language to more precisely reflect my ideas. Due to my work schedule, I do much of my writing in the evenings, sometimes just before I turn in for the night. There have been instances when I woke up the next morning in a panic about about whether something unintentionally inflammatory had slipped past me the night before. This has made me much more careful to jump into sharp criticism or hot-button topics. For the better, I think.

So I'm with the guys over at Power Line when they blame anonymity in part for the "dismally low level of discourse that generally prevails online." Not to condone Whelan's outing of Blevins (for which he subsequently apologized), but a fake person has little grounds to complain when he is outed by a real person. Better to just write what you mean, mean what you write, and own up to your ideas.

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The Limits of Political Philosophy in an Existential World

The other day, a co-worker and I were discussing "memory movies"--Memento, Total Recall, Eternal Sunshine of the Spotless Mind, The Matrix. Movies that play on the mind/matter dichotomy, that question whether there is a world outside the mind. It had been a while since I watched Memento, so I put in the DVD over the weekend. The plot of the movie is hard to recall because the whole story moves backwards, showing one five-minute scene, and then the five-minutes that happened before that, and so on. It produces a destabilizing effect that helps the viewer empathize with the protagonist, a man with a condition that prevents him from forming any short term memories, but who nonetheless plods ahead, scribbling notes and "facts" for himself, in his quest to find his wife's murder.

The movie gives a thoroughly existential account of human nature. Stripped of the comfort of our stabilizing memories, life simply moves by us, objects in the world impress upon our senses for a short while, and we occupy ourselves always with some present task, but never with any security that it will produce a meaningful consequence. Memory provides a means to anchor the otherwise meaningless torrent of experiential data by giving us the ability to engage in puzzles that require the accumulation and manipulation of information acquired over long periods of time. In this way, an otherwise meaningless present task can have meaning in its place in the larger puzzle. But mustn't we still ask, what is the point of the larger puzzle? Perhaps we simply must learn to stop asking questions of purpose; we make and solve puzzles, and that is all.

Memento also asks, as The Matrix does, how do we come to know anything that is outside the mind? And how can we communicate anything that is out there? How would we ever know that others might believe the same things that we do? We are full of biases, some universal among humans, but perhaps all slightly different. Reason is our only conduit, but it cannot bear the strain: words already truncate their writers' ideas, which thus may never be truly made known to others; and the ideas' full context can never be expressed, whether due to the writers' inability to account for it, or the listeners' attention span. Perhaps, then, we are foolish to believe that we can live in big societies held together by the slim cord of reason. We instead must rely on the mere coincidence of our agreement on things simply because they resonate in the right brain, not because they are approved by the left.

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Healthcare Surrealism

After sounding like a realist in his Cairo speech, Obama goes right back to calling for healthcare utopia in his radio address today:

Any health care reform must be built around fundamental reforms that lower costs, improve quality and coverage and also protect consumer choice."

NY Times reports:

Just how he plans to achieve that remains up in the air; the address was long on broad goals and short on specifics. Mr. Obama said that he had made it clear to Congress that health reform should not add to the budget deficit.

“We’ll work with Congress to fully cover the costs through rigorous spending reductions and appropriate additional revenues,” Mr. Obama said. “We’ll eliminate waste, fraud and abuse in our health care system, but we’ll also take on key causes of rising costs — saving billions while providing better care to the American people.”

Who could disagree with this? All upside and no downside. Somehow, I'm reminded of the project engineer's expression: "good, fast, and cheap -- pick two."

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Tocqueville on the GM Takeover

Alexis de Tocqueville once remarked on the unique character of America to achieve great things through its individualism:

[The American] makes known his plan, offers to execute it, calls individual forces to the assistance of his, and struggles hand to hand against all obstacles. Often, doubtless, he succeeds less well than if the state were in his place; but in the long term the general result of all the individual undertakings far exceeds what the government could do.

Of course, that was written before "too big to fail" entered the lexicon, and 31-year old wunderkinds were tougher to come by.

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Is Gay Marriage a Slippery Slope to Polygamy?

There is some great discussion on this question at Positive Liberty. In my opinion, commenter Braxton Thomason gets the better of the argument. If marriage is opened up to be merely the recognition of a romantic relationship of consensual adults, it will be tough-going to find a principled exception to polygamy. Once we have a few more TV shows like Big Love, it might not sound so exotic and weird. At that point, anecdotal arguments against polygamy will no longer be persuasive, and we'll start demanding some hard empirical data, just like we do now in the debate over same sex marriage.

In 20 years, Jason Kuznicki's arguments might subject him to the kinds of accusations of bigotry that SSM opponents incur today. Just like 20 years ago, one could probably win an argument against gay marriage by suggesting the "absurd" scenario of two men raising a baby. It goes to show that, until the minority group in question has reached a critical mass (e.g., once we can all point to a friend or family member who is a member of that group, thus stirring up some empathy), we don't need very strong arguments to justify discriminatory attitudes towards that group.

Thus, if you're pro SSM but anti polygamy, ask yourself whether the arguments against polygamy would hold up if you knew some really devoted polyamorous people who were really sweet and otherwise normal and just wanted to live their lives and overcome struggles without all the highfalutin rhetoric from people who have no business imposing their values on them. If you're a consistent libertarian, I think you'd have to dismiss the idea of making an exception, and hold that marriage must embrace polygamy. If you can't get over that there's something just wrong about it, well, you might soon be the target of a "you might be a redneck if..." joke.

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Empathy Is Best Served by Adhering to the Law

John Hasnas his this wonderful op-ed at the Wall Street Journal:

As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen."

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.

One can feel for unfortunate homeowners about to lose their homes through foreclosure. One cannot feel for unknown individuals who may not be able to afford a home in the future if the compassionate and empathetic protection of current homeowners increases the cost of a mortgage.

In general, one can feel compassion for and empathize with individual plaintiffs in a lawsuit who are facing hardship. They are visible. One cannot feel compassion for or empathize with impersonal corporate defendants, who, should they incur liability, will pass the costs on to consumers, reduce their output, or cut employment. Those who must pay more for products, or are unable to obtain needed goods or services, or cannot find a job are invisible.

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

H/T Stephen Bainbridge

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The Dems and Hispanic Judicial Appointments

Worth reading over at Powerline:

If you don't read anything else today, read Byron York's searing account of what happened last time a brilliant Hispanic jurist was nominated to a high-profile appellate post:

Born in Honduras, [Miguel] Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.

Estrada's nomination for a federal judgeship set off alarm bells among Democrats. There is a group of left-leaning organizations -- People for the American Way, NARAL, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others -- that work closely with Senate Democrats to promote Democratic judicial nominations and kill Republican ones. They were particularly concerned about Estrada.
In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. "They also identified Miguel Estrada as especially dangerous," the staffer added, "because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."

It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench.

They succeeded, too. They filibustered Estrada for years and he never made it onto the bench. So, when you see Barack Obama--who voted to filibuster Sam Alito!--piously denouncing "the political posturing and ideological brinksmanship that has bogged down this process" in the past, remember Miguel Estrada. Somewhere on this earth, there is a worse hypocrite than Barack Obama. I just can't think who he is offhand....

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Should Judicial Appointments Be Used As a Mechanism to Quell Racial Tensions?

Bill Handel this week extolled Obama for picking a Latina for a high position of power, explaining how it was a carefully calculated move to help mend relations between blacks and Hispanics. Two problems with this. First, aren't distinctions based on race supposed to be bad? This is not the same argument against affirmative action as "reverse racism." Affirmative action involves the idea of "setting things right," of "leveling the playing field" to make up for years of abuse of legal and political rights and processes. That is, because whites enjoyed power and wealth off the backs of minority groups for a period of time, some degree of promotion of minority groups ought to be permitted. In this way, the argument goes, we might achieve a degree of parity that we might otherwise not achieve, and thus truly become color blind.

But the Sotomayor appointment is different. As Handel argues, there are petty grievances between two minority groups, and we have a chance to fix it by doling out positions of power to selected members of those groups. That is, the appointments are made not because one group has been disadvantaged, as is the case in the affirmative action model. They are made instead because, without the appointments, some irascible members of the groups will continue to feel slighted, and the clash between the two groups will continue. This is a different sort of racial realism. And I find it extremely disappointing. Even if such racially motivated appointments quell these conflicts (which seems highly dubious to begin with), do they deserve to be quelled? And what about the costs? Are we to sacrifice the integrity of our crucial governmental functions to placate injured egos, to balance the demands of thugs?

Decisions based on race are infuriating. There is no end to the complications that are created when we make decisions based on race in the hopes of ending the practice of making decisions based on race. The answer is much simpler than that: stop making decisions based on race.

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The Case for Marriage As a Cultural Institution

I found Sam Schulman’s article, The Worst Thing About Gay Marriage, very interesting. It seems to suggest that the modern concept of marriage is already a bit off its traditional rocker, and that gay marriage would go the rest of the distance towards making it utterly meaningless. That is, the historical aims of marriage included protecting women and children, promoting chastity, defining the moment of transition from life as a child to life as an adult, are less relevant today. But, as applied to gays, they have absolutely zero relevance. Instead, marriage for the gay movement is seen merely as the next stage of romantic progression. This is a dangerous truncation of marriage, which traditionally had much broader impact on culture and individual and social human development. Ultimately, Shulman believes, gays will bore of it, everyone else will forget what it means, and the entire institution will die. Hard to say if that’s exactly how it will happen, but it’s a compelling argument.

The entity known as "gay marriage" only aspires to replicate a very limited, very modern, and very culture-bound version of marriage. Gay advocates have chosen wisely in this. They are replicating what we might call the "romantic marriage," a kind of marriage that is chosen, determined, and defined by the couple that enters into it. Romantic marriage is now dominant in the West and is becoming slightly more frequent in other parts of the world. But it is a luxury and even here has only existed (except among a few elites) for a couple of centuries—and in only a few countries. The fact is that marriage is part of a much larger institution, which defines the particular shape and character of marriage: the kinship system.

The role that marriage plays in kinship encompasses far more than arranging a happy home in which two hearts may beat as one—in fact marriage is actually pretty indifferent to that particular aim. Nor has marriage historically concerned itself with compelling the particular male and female who have created a child to live together and care for that child. It is not the "right to marry" that creates an enduring relationship between heterosexual lovers or a stable home for a child, but the more far-reaching kinship system that assigns every one of the vast array of marriage rules a set of duties and obligations to enforce. These duties and obligations impinge even on romantic marriage, and not always to its advantage. The obligations of kinship imposed on traditional marriage have nothing to do with the romantic ideals expressed in gay marriage.

Consider four of the most profound effects of marriage within the kinship system.
The first is the most important: It is that marriage is concerned above all with female sexuality. The very existence of kinship depends on the protection of females from rape, degradation, and concubinage. This is why marriage between men and women has been necessary in virtually every society ever known. . . .

. . . .

Second, kinship modifies marriage by imposing a set of rules that determines not only whom one may marry (someone from the right clan or family, of the right age, with proper abilities, wealth, or an adjoining vineyard), but, more important, whom one may not marry. Incest prohibition and other kinship rules that dictate one's few permissible and many impermissible sweethearts are part of traditional marriage. Gay marriage is blissfully free of these constraints. There is no particular reason to ban sexual intercourse between brothers, a father and a son of consenting age, or mother and daughter. . . . [Incidentally, I have argued the same thing here, here, and here.]

Third, marriage changes the nature of sexual relations between a man and a woman. Sexual intercourse between a married couple is licit; sexual intercourse before marriage, or adulterous sex during marriage, is not. . . .

Now to live in such a system, in which sexual intercourse can be illicit, is a great nuisance. Many of us feel that licit sexuality loses, moreover, a bit of its oomph. Gay lovers live merrily free of this system. Can we imagine Frank's family and friends warning him that "If Joe were serious, he would put a ring on your finger"? Do we ask Vera to stop stringing Sally along? Gay sexual practice is not sortable into these categories—licit-if-married but illicit-if-not (children adopted by a gay man or hygienically conceived by a lesbian mom can never be regarded as illegitimate). Neither does gay copulation become in any way more permissible, more noble after marriage. It is a scandal that homosexual intercourse should ever have been illegal, but having become legal, there remains no extra sanction—the kind which fathers with shotguns enforce upon heterosexual lovers. I am not aware of any gay marriage activist who suggests that gay men and women should create a new category of disapproval for their own sexual relationships, after so recently having been freed from the onerous and bigoted legal blight on homosexual acts. But without social disapproval of unmarried sex—what kind of madman would seek marriage?

Fourth, marriage defines the end of childhood, sets a boundary between generations within the same family and between families, and establishes the rules in any given society for crossing those boundaries. Marriage usually takes place at the beginning of adulthood; it changes the status of bride and groom from child in the birth family to adult in a new family. . . .

These four aspects of marriage are not rights, but obligations. They are marriage's "a priori" because marriage is a part of the kinship system, and kinship depends on the protection, organization, and often the exploitation of female sexuality vis-à-vis males. [I will add that this is the reason we have witnesses at wedding ceremonies—they are not merely witnesses to a sweet, romantic event; they are witnesses to the new marital duties being created.] None of these facts apply at all to love between people of the same sex, however solemn and profound that love may be. In gay marriage there are no virgins (actual or honorary), no incest, no illicit or licit sex, no merging of families, no creation of a new lineage. There's just my honey and me, and (in a rapidly increasing number of U.S. states) baby makes three.

What's wrong with this? In one sense, nothing at all. . . . But without these obligations—why marry? Gay marriage is as good as no marriage at all.

Sooner rather than later, the substantial differences between marriage and gay marriage will cause gay marriage, as a meaningful and popular institution, to fail on its own terms. Since gay relationships exist perfectly well outside the kinship system, to assume the burdens of marriage—the legal formalities, the duty of fidelity (which is no easier for gays than it is for straights), the slavishly imitative wedding ritual—will come to seem a nuisance. People in gay marriages will discover that mimicking the cozy bits of romantic heterosexual marriage does not make relationships stronger; romantic partners more loving, faithful, or sexy; domestic life more serene or exciting. They will discover that it is not the wedding vow that maintains marriages, but the force of the kinship system. Kinship imposes duties, penalties, and retribution that champagne toasts, self-designed wedding rings, and thousands of dollars worth of flowers are powerless to effect.

. . . .

As kinship fails to be relevant to gays, it will become fashionable to discredit it for everyone. . . .

In other words, marriage used to be a part of enforcing cultural mores and perpetuating a way of life. Now, that enterprise is taboo. Interestingly, gay-marriage proponents are not content with merely toppling traditional mores, and instead want to force open the definitions to suggest that such traditions now include and embrace them. They don’t want to kill the chief, they want to wear his feathers and rule the same old village with their brave new rules. Schulman believes that it will never work. Either the natives will kill the new “chief” and preserve the old order, or they will all eventually agree that the headdress has no meaning, and collectively cast it away.

(Ironically, I was referred to Schulman’s article by Ed Brayton, who posted his own write-up of the piece, with his usual staggeringly high ratio of insults-to-analysis, under the title “The Dumbest Anti-Gay Marriage Argument Ever.”)

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You May Need a Permit to Conduct Home Bible Studies

Here's another frightening story. What is it with San Diego?

SAN DIEGO -- A local pastor and his wife claim they were interrogated by a San Diego County official, who then threatened them with escalating fines if they continued to hold Bible studies in their home, 10News reported.

Attorney Dean Broyles of The Western Center For Law & Policy was shocked with what happened to the pastor and his wife.

Broyles said, "The county asked, 'Do you have a regular meeting in your home?' She said, 'Yes.' 'Do you say amen?' 'Yes.' 'Do you pray?' 'Yes.' 'Do you say praise the Lord?' 'Yes.'"

The county employee notified the couple that the small Bible study, with an average of 15 people attending, was in violation of County regulations, according to Broyles.

Broyles said a few days later the couple received a written warning that listed "unlawful use of land" and told them to "stop religious assembly or apply for a major use permit" -- a process that could cost tens of thousands of dollars.

[Update: The county backs off.

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