"Explaining" justices

Volokh, Eugene VOLOKH at law.ucla.edu
Mon Jun 4 09:48:49 PDT 2007

	They might be -- or they might not be.  Libertarianism (as
opposed to cartoons of libertarianism) is a movement with many strands.
Principled libertarians disagree on war, on abortion, on the rights of
children, on environmentalism, and more.  I haven't heard libertarians
talk much about prisoner rights from a libertarian perspective, but
principled libertarians can certainly have different views of, for
instance, waiver of rights for committing serious crimes.

	More importantly, principled libertarians have different views
on the degree to which the Constitution mandates libertarianism, and on
the areas in which it does so.  Principled libertarians need take the
view that everything wrong must be unconstitutional, just as principled
liberals can have broad views of constitutional constraints, narrow
views (consider, for instance, Mark Tushnet), or views broad in some
areas and narrow in others (e.g., Justices Brennan, Marshall, etc.).  

	That's why I was so put off by the claim that "I had not
realized that the principled libertarian Prof. Bernstein turns out,
under goading, to embrace statist authoritarianism as perfectly
constitution."  Rather than identifying in any detail any real
inconsistency in Prof. Bernstein's views, it rests its charge of
hypocrisy simply on the inconsistency of Prof. Bernstein's views with
the speaker's cartoon of libertarianism.  That's a weak, unfair dig at a
fellow list member (and, incidentally, a good friend of mine), and can't
pass unanswered.



	From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
	Sent: Monday, June 04, 2007 7:11 AM
	To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
	Subject: RE: "Explaining" justices
	Might not principled libertarians be more willing than others to
construe the Due Process Clause in ways protective of "life, liberty,
and property," and view arbitrary state violence as an attack on either
life or liberty?  


	From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh,
	Sent: Sun 6/3/2007 11:36 PM
	To: CONLAWPROF at lists.ucla.edu
	Subject: RE: "Explaining" justices
	Oh, come now.  Principled libertarianism tells us very little
about whether the Eighth Amendment applies to prison guards' conduct.
I'm not sure it even tell us that much about terms and conditions of
imprisonment as such, but surely it doesn't dictate that a particular
Amendment be read to, say, extend to prison guard misconduct as opposed
to just the prescribed sentence.  Let's try to leave personal jabs at
fellow list members out of it.


		From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
		Sent: Sunday, June 03, 2007 5:48 PM
		To: DavidEBernstein at aol.com; hendersl at ix.netcom.com
		Cc: CONLAWPROF at lists.ucla.edu
		Subject: RE: "Explaining" justices
		Forget the 8th Amendment; it also constitutes a
deprivation of life, liberty, or property without due process of law.  
		I had not realized that the principled libertarian Prof.
Bernstein turns out, under goading, to embrace statist authoritarianism
as perfectly constitutional.


		From: DavidEBernstein at aol.com
[mailto:DavidEBernstein at aol.com]
		Sent: Sun 6/3/2007 7:47 PM
		To: hendersl at ix.netcom.com; Sanford Levinson
		Cc: CONLAWPROF at lists.ucla.edu
		Subject: Re: "Explaining" justices
				If I recall, Thomas (and Scalia) don't
argue that abuse of prisoners is not "cruel" or "unusual", but that it's
not "punishment" within the constitutional meaning of the term.  I don't
know enough about what "punishment" was/is supposed to mean in the 8th
Amendment to have an informed opinion on this argument, but if indeed
the 8th Amendment was only meant, as an original matter, to speak to
lawful "punishment" and not extralegal abuse, (and thus that this
distinction is a legally significant one), I don't see why holding the
Thomas/Scalia position would have anything to do with psychology, as
opposed to their jurisprudential philosophy of originalism.  I don't
think that the Justices who voted with the Kelo majority hate
lower-middle class homeowners!
		In a message dated 6/3/2007 8:20:09 PM Eastern Daylight
Time, hendersl at ix.netcom.com writes:

			Unless Justice Thomas is more wedded to his
narrow  theory of 
			"originalism' than to personal knowledge,
however, it *is* hard to see 
			why he thinks beating and torture of convicted
prisoners is not an 8th 
			amendment violation.  *That* position *is*
troubling without some other 
			psychological explanation such as
authoritarianism or lack of empathy.


		See what's free at AOL.com
<http://www.aol.com/?ncid=AOLAOF00020000000503> . 

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