"Explaining" justices
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Jun 4 10:56:44 PDT 2007
Of course it's entirely plausible to ask the question -- and to ask
whether Justice Thomas's views do involve a presumption for liberty, or
only involve what he sees as the original meaning (or deeply rooted
precedents) as supporting liberty, with no presumption either way.
Thomas is far removed from Randy Barnett.
In any case, it's one think to ask the question (as does Frank's
post), and another to assume as an answer (as does the post that
triggered my original response) that the libertarian is being a
hypocrite for not deciding matters the way a nonlibertarian thinks a
"principled libertarian" should.
Eugene
________________________________
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Frank Cross
Sent: Monday, June 04, 2007 10:47 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: "Explaining" justices
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 <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
<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
<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,
________________________________
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Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
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