"Explaining" justices
Frank Cross
crossf at mail.utexas.edu
Mon Jun 4 10:47:19 PDT 2007
What is a principled libertarian? How could a principled libertarian
favor rights infringement of any sort? Could a principled communist
be in favor of some free markets? I know the answer to that is that
libertarianism does not equal anarchy and recognizes some
government. And libertarians come in varying degrees of strength.
But I would suppose a principled libertarian is one who favors
liberty, regardless of whether he or she benefits from the liberty or
one's ideology. Gun rights as well as gay rights, etc. As a
constitutional legal matter, I would think that this means
interpreting the Constitution, when at all ambiguous, as having a
presumption for liberty. Whether this involves property rights, gun
rights, gay rights, criminal defendants' rights, etc. Like Randy
Barnett's view. And though I have not studied Justice Thomas, I
think his natural rights type views and the importance he places on
the Declaration of Independence roughly conforms to this. But this
raises the question of why his presumption for liberty seems
distinctly stronger in some areas (such as property rights) than in
others (such as the rights of prisoners or defendants).
At 11:48 AM 6/4/2007, Volokh, Eugene wrote:
> 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.
>
> Eugene
>
>
>________________________________
>
> 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?
>
> sandy
>
>________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh,
>Eugene
> 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.
>
> Eugene
>
>
>________________________________
>
> 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.
>
> sandy
>
>________________________________
>
> 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.
> respectfully,
>
>
>
>
>
>
> ________________________________
>
> See what's free at AOL.com
><http://www.aol.com/?ncid=AOLAOF00020000000503> .
>
>_______________________________________________
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Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
512.471.5250
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