Jennifer Thompson is one of the property rights attorneys at the Pacific Legal Foundation. We talked about the case of Barbara Lynch, a San Diego area property owner who was told that if she wanted to build a seawall to prevent her land from collapsing into the ocean, she'd have to give up property rights to the California Coastal Commission. And we talked about the case of the Levin family in San Francisco, who were forced to pay two years worth of the difference between the rent they charged their tenant and the rent the tenant had to pay at his new place, in cash, before they were allowed to take their property off the rental market.
The Phoenix Federalist Society is doing an event about the 10 year anniversary of the awful Kelo v. New London eminent domain case on June 17.
I'll be sitting in on KFMB AM 760 in San Diego next week, between 10 and noon. You can listen online here. We'll be talking about some cool PLF cases, but also about other issues, with guests including Dan Caldwell of Concerned Veterans for America, Jonathan Blanks of the Cato Institute, and Christina Sandefur of the Goldwater Institute. Please join us!
In today’s oral argument in the same sex marriage cases, Justice Alito asked attorney Mary Bonauto whether same sex marriage existed in ancient Greece. The ancient Greeks had both marriage and legal same sex relationships—even Plato wrote approvingly of same sex relationships, Alito noted—yet they didn’t have same-sex marriage. Thus it must follow that constitutional protection of same-sex marriage must be a dramatic, unwarranted change in the understanding of marriage. I’m not sure that this proves what Justice Alito thinks it proves. Marriage in ancient Greece was a profoundly patriarchical system, with women dramatically deprived of what we would consider basic human rights. Lacking a constitutional principle of equality, let alone of the equality of men and women, the Greeks saw nothing wrong with treating women essentially as property. Although the Greeks of Homer’s day treated women as more equal, the Athenians of Plato’s age treated wives as belongings—“a mere chattel, passively submitting to the position of her friends,” as one author observes. “Of her the verb ‘marry’ is always used in the passive.” Charles Burton Gulick, The Life of the Ancient Greeks 123 (1902). Women enjoyed no legal rights, could be divorced at any time, and only rarely had an opportunity to go out of doors. “The best ornament of women is silence,” said Sophocles.
Justice Alito alluded to the Greeks in order to buttress his suggestion that confining marriage to opposite-sex couples was not meant to demean same-sex couples. But the practices of the Greeks actually points up the opposite conclusion. The reason why Plato and other Greek philosophers wrote approvingly of same-sex relations was because they treated women as such a degraded class that they thought companionship and partnership were possible only between men. A “Platonic friend” is necessarily a man’s other male friends, because one can only share thoughts and opinions with another man—not with a woman. Same-sex relations were for the Athenians a way of having both sex and partnership, which they considered impossible between opposite-sex couples in just the way today’s conservatives think it impossible between same-sex couples. One can easily imagine a judge at the Areopagus sneering at the idea of companionate, opposite-sex marriage by pointing out that the definition of marriage must necessarily exclude the sharing of ideas, passions, beliefs, experiences, and so forth. Marriage as a “commitment” at all would have been regarded as a freakish innovation. When Alito says that the Greeks' limiting of marriage to opposite-sex couples was "not based on prejudice against gay people," he omits the fact that the Athenian practice of same-sex relations was based on prejudice against opposite-sex couples!
Our modern conception of companionate marriage—of marriage as a “conversation,” as Milton put it—is a relatively new one, dating back only a few centuries, and even then, women were regarded as subordinate partners until a few decades ago. To draw on the Greeks as a precedent for the definition of marriage is absurd because it rejects the fundamental principle of the American constitutional order—and the one that is at issue in these cases—the principle of equality. That principle was fought for over the course of centuries, and we today so take for granted the proposition that men and women are essentially equals in a marriage partnership—we so take for granted the idea that marriage is a partnership at all!—that we tend to forget how radical a change it really is.
Daniel Drezner has some comments here about Michael Eric Dyson’s obliteration of Cornel West. Great as Dyson’s critique is, it still is a little too respectful to West, who has always been a flim-flam artist. Be that as it may, Drezner singles out Dyson’s important point that there’s a fundamental difference between speaking and writing that must never be overlooked: “Improvisational speaking bears its wonders,” writes Dyson, “the emergence on the spot of turns of thought and pathways of insight one hadn’t planned, and the rapturous discovery, in front of a live audience, of meanings that usually lie buried beneath the rubble of formal restrictions and literary conventions. Yet…[f]or scholars, there is a depth that can only be tapped through the rigorous reworking of the same sentences until the meaning comes clean—or as clean as one can make it.” Drezner adds: “for a scholar, the spoken and the written should ideally complement and not substitute for each other. The ‘on the spot turns of thought’ that Dyson references about spoken presentations are very, very real. The key is that they should be written down soon as possible and then examined with an astringent bulls*** detector before putting them into something approximating scholarship.”
As someone who does a lot of both speaking and writing, I can testify to the sometimes disconcerting differences between the two. I will on occasion devise some new phrase or idea in extemporaneous remarks that I think deserves further exploration…only to find that when I try to write it down, it loses the spontaneity and cleverness that seemed at the moment so vivid. I get bogged down, first, by trying to track down the source of a quotation—which then turns out not to say quite what I remembered, or it leads me to a source that adds a caveat that I’d forgotten. Then I find that someone else has written about the idea before and criticized it in a way I hadn’t anticipated. In trying to formulate a response to that criticism, I then circle around—and find my way blocked by some implausible consequence of my new idea…. And so the thread is lost. Or rather, it remains only a thread, too insubstantial to become a chain of thought.
Drezner adds, “The second thing is that good scholarship — hell, just good writing period — requires a curious alchemy of seclusion and feedback. In this day and age, good writing mostly comes from a solitary wrestling match between the writer, the keyboard, and the online distractions just waiting to sap one’s writing ambitions…[but] feedback matters as well. And the best ideas I’ve had when presenting don’t come from the presentation per se but from the back-and forth that comes the question-and-answer period.” Here I’m reminded of a favorite passage from Francis Bacon, who in his essay on Friendship says that
The second fruit of friendship, is healthful and sovereign for the understanding…. [I]t maketh daylight in the understanding, out of darkness, and confusion of thoughts. Neither is this to be understood only of faithful counsel, which a man receiveth from his friend; but before you come to that, certain it is, that whosoever hath his mind fraught with many thoughts, his wits and understanding do clarify and break up, in the communicating and discoursing with another; he tosseth his thoughts more easily; he marshalleth them more orderly, he seeth how they look when they are turned into words: finally, he waxeth wiser than himself; and that more by an hour’s discourse, than by a day’s meditation…. Neither is this second fruit of friendship, in opening the understanding, restrained only to such friends as are able to give a man counsel; (they indeed are best;) but even without that, a man learneth of himself, and bringeth his own thoughts to light, and whetteth his wits as against a stone, which itself cuts not.
The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an era in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or in America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the inspiration of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses.... Neither the people, nor their conventions, committees, or sub-committees, considered legislation in any other light than as ordinary arts and sciences, only more important.
It's not about Republican versus Democrat. It's about the creation of a Government Class and a Citizen Class. The former have the privileges, the latter bear the burdens. And here is a great example of it.
...in a world without regular, enforceable guidelines and institutions to define and enforce private rights (that is, in a “state of nature”), individual actors will strive to gain as much control over resources as they can. Take, for example, a fish pond. Each will try to hoard access to it, investing heavily in fencing it off and otherwise defending it against rivals, or in discovering ways to confiscate their rivals’ gains. Such investments divert attention away from more productive undertakings and are thus economically wasteful. Each person will also tend to over-exploit the resource, taking as many fish as possible because they cannot trust that others will not grab the remaining fish. In the absence of any authority to police each person’s rights, the race will go to the swift and the battle to the strong.
But if the people agree to a system of rules to govern legitimate claims—a contract, a set of mores, or a police system that protects every person’s right to fish in the pond—each will gain because he can reduce his inefficient investments (in predation or defending against predation) and can instead focus his energies on productive activity. Each fisherman is also less likely to over-exploit the resource since the police will guarantee the claims of rivals who are too poor or too weak or otherwise unable to enforce their own claims. Thus, in theory, a common system of rational rules improves economic efficiency by reducing wasteful expenditures in obtaining and defending resources. This is what makes the social compact rational.
Today I ran across this astonishingly vivid illustration of my point:
Some conservatives have once again taken up the defense of “judicial restraint,” or as I call it, the Dogma of Deference. They’re responding to libertarians such as Randy Barnett, Damon Root, Evan Bernick, and myself, who have argued that the Dogma finds no support in the Constitution, and is actually a Progressive construct which in practice leads to expanding government and narrowing individual rights in a way contrary to the Constitution’s text and philosophical foundations. Most recently, Carson Holloway at National Review’s Bench Memos argues that judicial restraint is rooted in the views of the founding era, and particularly John Marshall.
1. Marshall’s “reluctance” versus the Dogma of Deference
Of course it’s true that Marshall regarded the idea of courts declaring a law unconstitutional to be a “painful duty,” and he said he would presume that lawmakers were attentive to their constitutional obligations when passing laws. But there is a crucial difference between this respect for the other branches of government and the Dogma of Deference which was fashioned by Progressives and which today dominates the judicial system. The latter is a general theory of constitutional government—as opposed to Marshall’s pragmatic, rebuttable presumption of respect for a coordinate branch. The Dogma holds that judicial acts which frustrate the will of elected officials or their administrative hirelings lack legitimacy—that they present a “countermajoritarian difficulty.” To Marshall and his contemporaries, by contrast, there was no such “difficulty,” and judicial intervention was seen not as an essentially antidemocratic act, but on the contrary as simultaneously (1) justified by higher criteria than majoritarianism and (2) fundamentally more democratic than even a legislative act.
Robert Tracinski has some thoughts on why leftists get so mad and so personal in political disagreements. Although I think he gives conservatives a tad more credit than they deserve, I generally agree with his points. But I think it's not just that their hoped-for Revolution depends on other people--it's that their whole reality depends on other people. They think that the evil in the world is the result of social structures (everything in the world is the result of social structures) that are ultimately within our control if only we'll exercise sufficient will power. Yes we can! sounds inspiring, only until it turns into Why won't you?! And it always does.
For example, crime or discrimination are the result, for the leftist, of institutions, not spontaneous orders, and therefore are caused by somebody's sin. If you don't act to change things, therefore, you're part of the problem. Poverty? We can cure it by raising the minimum wage. Because poverty is caused by greedy people being stingy. And if you oppose us, you're helping cause poverty!
Yet in reality, many of these problems, including poverty, are not caused by design, but are the consequences of nature or spontaneous orders. If you think the laws of economics are not natural laws but the result of human consciousness, then, you're unable to distinguish between those things that can be cured by conscious acts, and those that can't. And this, in turn, affects your thinking about justice. It leads you to think natural things can be unjust--that inequality is per se unjust. If you think that way, you'll soon think you live in a world that is absolutely saturated, through and through, with injustice and unjust people who are basically only making things worse all the time. How could you not go through life furious with indignation?
If you're ignorant about economics, for example, and don't know how prices work as an informational system in a spontaneous order, then you'll think that the reason things are expensive is just because greedy people put big price tags on their stuff. If they weren't greedy, they'd charge less. And that greed makes people poor! It's all the result of evil people doing evil things. If you're ignorant about socio-biology (or just refuse to believe it) then you think the reason women are on average less likely to occupy management positions and earn the same as men is because of evil sexist corporate managers making anti-women choices. If you're ignorant about justice and think inequality or unfairness are the same thing as injustice, then you're going to think that nature itself is unjust, since nature distributes her gifts unequally. If you go through life believing that reality is ultimately about other people instead of being ultimately about your interaction with nature, then you're going to think all the bad stuff is ultimately caused by other people, and that's going to make you hate other people, even while you profess to love humanity in the abstract.
Left political thinking is, largely, ultimately a conspiracy theory. The institution of private property, for example, was decided by exploitative elitist a as a tool for exploiting the workers and monopolizing the social surplus. The rest of capitalism flows from a consciousness rooted in this greedy design, and devoted to perpetuating it. People either know this and are consciously aiding in it, or they're dupes who need to be educated and mobilized. Well, if you think politics is ultimately a conspiracy of the evil Koch Brothers against the People's True Path to equality, then naturally you're going to be angry.
Obviously this doesn't mean that leftists are wrong to think there are a lot of injustices in the world, or that injustices are often caused by evil choices or failure to act. Everyone rightly recognizes that there's plenty of bad stuff out there we could do more to fix. But this basic leftist premise--what Rand called "social metaphysics" or "second-handedness"--this idea that reality is ultimately about people's acts, not about nature--is what makes the difference. It's the reason, ultimately, for the long leftist tradition of exhortation for revolution--as opposed to the right, which typically focuses on the bourgeois virtues of going out and getting a job and pursuing happiness. As Martin Malia writes, there really is no such thing as socialism to compare with capitalism. There's just capitalism versus some vague anti-property rights, anti-free exchange abstraction of the ideal. Your goal as a leftist, then, is ultimately the transformation of all of actual society into something equal and fair, but since this is impossible and even meaningless, it's a perpetual exercise in futility. The leftist, understandably given his basic assumptions, assumes that this failure is caused by lack of faith. Yes we can! so Why haven't we?! Because we're evil, that's why.
As today is Greek Independence Day, a quotation from Byron's Childe Harold's Pilgrimmage, originally addressed to the Greeks, in whose independence struggle Byron himself was killed:
Fair Greece! sad relic of departed worth! Immortal, though no more; though fallen, great! Who now shall lead thy scattered children forth, And long accustomed bondage uncreate? Not such thy sons who whilome did await, The hopeless warriors of a willing doom, In bleak Thermopylae's sepulchral strait— Oh, who that gallant spirit shall resume, Leap from Eurotas' banks, and call thee from the tomb?
Spirit of Freedom! when on Phyle's brow Thou sat'st with Thrasybulus and his train, Couldst thou forbode the dismal hour which now Dims the green beauties of thine Attic plain? Not thirty tyrants now enforce the chain, But every carle can lord it o'er thy land; Nor rise thy sons, but idly rail in vain, Trembling beneath the scourge of Turkish hand, From birth till death enslaved; in word, in deed, unmanned.
In all save form alone, how changed! and who That marks the fire still sparkling in each eye, Who would but deem their bosom burned anew With thy unquenched beam, lost Liberty! And many dream withal the hour is nigh That gives them back their fathers' heritage: For foreign arms and aid they fondly sigh, Nor solely dare encounter hostile rage, Or tear their name defiled from Slavery's mournful page.
Hereditary bondsmen! know ye not Who would be free themselves must strike the blow? By their right arms the conquest must be wrought? Will Gaul or Muscovite redress ye? No! True, they may lay your proud despoilers low, But not for you will Freedom's altars flame. Shades of the Helots! triumph o'er your foe: Greece! change thy lords, thy state is still the same; Thy glorious day is o'er, but not thy years of shame.
The city won for Allah from the Giaour, The Giaour from Othman's race again may wrest; And the Serai's impenetrable tower Receive the fiery Frank, her former guest; Or Wahab's rebel brood, who dared divest The Prophet's tomb of all its pious spoil, May wind their path of blood along the West; But ne'er will Freedom seek this fated soil, But slave succeed to slave through years of endless toil.
Surprisingly timely today. Incidentally, Frederick Douglass used the line "Hereditary bondsmen! know ye not / Who would be free themselves must strike the blow?" as his personal motto all his life.
I'll be on air with A&G tomorrow at 7 Pacific to discuss some interesting Supreme Court arguments this week, including the case about whether the states can restrict what organizations may put their symbols on license plates.
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.