God of the Machine – Page 24 – Culling my readers to a manageable elite since 2002.

Around the World in 80 Words

 Blogs  No Responses »
Mar 202003
 

Yes, I’m out of ideas again, so it’s time for a jaunt through the blogroll:

AC Douglas tries to assemble a bookcase, and nearly succeeds.

Cosh on cargo cults and Nigerian spam.

Julian Sanchez interprets the Constitution.

Will Wilkinson thinks, encouragingly, that there may be such a thing as optimal disenchantment.

You don’t like Andrea Harris’s site design? Just wait a few minutes, it’ll change.

Brian Micklethwait on prettifying parking lots.

(Update: As an outside-the-blogroll bonus, a fabulous interview with my favorite living novelist, Richard Price. Buy his books so he can stop writing screenplays. Thanks to the Blowhards, who are in fine fettle themselves.)

Spontaneous Order

 Heuristic  10 Responses »
Mar 192003
 

One of my favorite examples of the Hayekian concept of “spontaneous order” is stairway traffic. In the subway at rush hour, when people are trying to get up and down the stairs in a hurry, two lines always form between the guardrails, and they are always on the right. Any idiot who tries to plow through on the left is forced to the right by the sheer mass of the traffic. The escalators, two bodies wide, work the same way. The stationary riders stay to the right, and the walkers to the left, the passing lane, as it were.

Hayek explains far better than I ever could why such rules arise. But why this particular rule? I theorize that it’s because in America we drive on the right and pass on the left. This hypothesis is easily tested: in England or Japan or any number of other countries, where they drive on the left and pass on the right, do they walk the opposite way we do? If so, that would suggest that spontaneous rules are formed by analogy with preexisting rules. If not, it’s time for a new hypothesis. Can any readers enlighten me on this score?

One Cheer for Democracy

 Politics  10 Responses »
Mar 182003
 

I wish people would stop talking about bringing democracy to Iraq, as if it were the utmost value in Western political civilization. In fact it runs well behind rule of law, freedom of expression, and property rights — which is probably not a winning platform here, let alone there. Don’t get me wrong, the franchise certainly has its uses. It helps forestall violent revolution, as von Mises long ago pointed out, and it’s a tiny measure of protection against governments running utterly amok. Civil societies are all democracies; it does not follow that all democracies become civil societies.

Democracy, however, is the only good on which essentially everyone agrees, and so democracy it is. Its recent track record does not inspire confidence. Turkey is a democracy of sorts, and insofar as they have a rational polity it’s because the military enforces it. Hugo Chàvez, busily expropriating Venezuela, was elected. They vote in Egypt, which gets us resentment and an enormous foreign aid bill. Hitler* ascended to power through democratic means, even if he never won an actual election. What do you suppose a Saudi Arabian democracy would look like? Or a Palestinian one? Like lipstick on a pig, I’m guessing.

Bush, whatever his other limitations, appears to grasp this much. In last night’s speech he talked about a free Iraq, a vital Iraq, an Iraq without torture chambers, and a self-governing Iraq. The last was almost an afterthought. And remember the howls of outrage when Bush said the U.S. would not negotiate with the Palestinians until they got rid of Arafat? But he was elected! He’s the people’s choice! Exactly. What’s your point?

*I claim a Godwin’s Law exemption on the grounds that this isn’t a thread yet.

The Gentle Art of Making Enemies

 Culture, Navel-Gazing  16 Responses »
Mar 172003
 

Megan McArdle discusses the necessity, if you wish to socialize in Manhattan, of avoiding political discussion, if you have politics like hers or mine. But sometimes avoiding politics just isn’t enough. I once started talking, at a dinner party at my sister’s, about Japanese painting with a guy I’d never seen before. One interesting thing about traditional Japanese art, I said, is that vanishing-point perspective does not appear. My interlocutor maintained that this was because the artists had no interest in perspective; they were trying to do something else, although he never specified quite what. I pointed out that perspective was a scientific discovery, made by the Italians in the 15th century, and that if the Japanese had known of it they certainly would have used it, at least sometimes. So how does he explain the fact that it never appears until the 19th century?

Sure, I was egging him on a little on the Western hegemony front. But only a little, and I was completely unprepared for what came next. He stood up, announced to the room that he couldn’t take any more of this, gathered up his girlfriend, and stormed out. My sister, who brooks no nonsense, banished him for life.

(Update: Stumbling Tongue says anyone who thinks Manhattan is bad ought to try Italy.)

There Oughta Be a Law

 Heuristic, Politics  11 Responses »
Mar 142003
 

It had to happen. Elizabeth Smart’s father, Ed, calls for “Amber Alert” — a program to notify the public of child abductions that is used in 38 states — to go national, at a cost of a mere $25 million. “There is no question that Amber Alert is a necessity,” says Smart, with the usual combination of good intentions and bottomless economic ignorance. “Having it saves children.” Since Amber Alert, by the reckoning of one of its proponents, has been responsible for the apprehension of 47 criminals, whereas America’s Most Wanted has nabbed 746, it might make more sense to call for a national law to broadcast it twice daily, or perhaps a special cable channel all local providers will be required to carry — all America’s Most Wanted, all the time.

Bad luck, it seems, confers instant moral authority. A hitherto obscure person, granted his day before the TV cameras, permitted to say anything he likes, demands — a new law! What could be more American? We need a name for this phenomenon, previously observed in anti-gun crusader Sarah Brady; Richard and Maureen Kanka, parents of Megan and Megan’s Law; and Linda Campion, the motive force behind a pointless New York law allowing relatives of crime victims to testify at sentencing hearings. (There are other instances I’m too lazy to look up, but Kaus says three is a trend.) Any suggestions?

(Update: Paul Dubuc proposes “tragislation.” Not bad at all.)

This Post’s For You

 Navel-Gazing  6 Responses »
Mar 132003
 

I just want to say thank you, to everyone, for the remarkably high class of comments here — so high-class that they often make me wish I had written something better in the first place to justify them. Professional philosophers correct me about philosophy, polyglots about language, lawyers about law, poets and critics about poetry, national champions about bridge, the rest of you about everything else. In eight months of blogging I’ve received fewer than a dozen nasty or pointless comments, and hundreds of well-reasoned, polite, humorous, and pertinent ones. I’m overwhelmed, seriously, and this is just a small measure of my gratitude, to all of you.

Sermonette

 Philosophy, Politics  6 Responses »
Mar 132003
 

Munitions manufacturers prosper because many countries want weapons. Philip Morris prospers because many people want cigarettes. Conservative talk radio hosts prosper because many people are conservative, and like to listen to them. Lobbyists prosper because many people want the government to act for their particular ends, and the government has the power to do so. (Campaign finance reform always fails for the same reasons.) McDonalds prospers because many people like Big Macs. Drug dealers prosper because many people like to take drugs. Demand precedes supply. A lot of bad legislation and litigation would be avoided if people could tell an effect from a cause. It’s really not that complicated.

I, the Jury

 Movies  4 Responses »
Mar 122003
 

I shouldn’t have done it, I know, but last night I watched 12 Angry Men again on television. Its principal interest is sociological. It preserves in celluloid a representative collection of liberal stereotypes circa 1957 — bloviating bigot Ed Begley, Lonely Crowd adman Robert Webber, hypersensitive slum-dweller Jack Klugman (looking positively fawn-like, if you can believe it), neurotically precise broker E.G. Marshall, short-fused martinet Lee J. Cobb, broad-minded and tolerant architect Henry Fonda. What is it with Hollywood and architects anyway? How come they always get a free pass? Why are there doctor and lawyer jokes in store, but no architect jokes? One of the funniest running gags in Seinfeld was George, pretending not to be unemployed, continually masquerading as an architect. It’s so respectable, and you probably won’t have to answer any embarrassing technical questions. If I ever write a screeplay, I’m going to make my villain an architect, out of sheer perversity.

One thing you can’t help but notice, after you’ve seen this movie a few times, is how obviously guilty the boy is. Henry Fonda demolishes the eyewitness testimony, on which E.G. Marshall, the voice of prosecutorial reason, foolishly bases his case, but eyewitness testimony is usually unreliable anyway. Consider the murder weapon instead. The accused owned a switchblade with an elaborately carved handle, supposedly unique: the storekeeper where he bought it said he had never seen another. A switchblade of the same design was found in his father’s chest. The accused, questioned by the police about his own switchblade, maintained that he lost it through a hole in his pocket. (We’ll presume, though we’re never told, that his pocket actually did have a hole in it.) His alibi is that he went to the movies, whose titles, plots and actors he could not recall. Architect Fonda’s first gambit is to show the jury an identical switchblade that he bought in a pawnshop, reasoning thence that someone else could have done it. Maybe, but if the accused is innocent one is obliged to believe the following: first, that the real perpetrator committed the murder, coincidentally, with a knife identical to the one the suspect owned; second, that the accused lost his own knife on the very same night; and third, that he watched two movies and was unable to recall, when questioned immediately afterwards, a thing about either one. Reopen the deliberations, dammit! I want to hang that jury.

(Update: Jim Valliant, a district attorney, notes in the comments that by not turning the knife he bought over to the judge, Henry Fonda was also guilty of misconduct.)

(Another: Brian Micklethwait comments.)

The Ninth Amendment

 Law  7 Responses »
Mar 122003
 

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What are these unenumerated rights?

Many theorists, of whom Robert “Inkblot” Bork is the most notorious, have denied that unenumerated rights exist at all. The dominant school of legal philosophy, legal positivism, which holds that the only source of rights is the law itself, obliges its adherents to take this position. Unenumerated rights, implying an extralegal standard, are for the positivist a contradiction in terms. Frank positivists, like Bork, say that the Ninth Amendment is meaningless; less frank positivists, like Justice Robert Jackson, simply profess not to understand it. All positivists devoutly hope that if they ignore the Ninth Amendment it will go away. Historically this strategy proved highly effective. Before Justice Goldberg’s famous concurrence in Griswold v. Connecticut in 1965, the Ninth Amendment had been cited by the Supreme Court fewer than a dozen times.

Reciprocists, in a variation on the theme, claim that the Ninth Amendment is a mirror-image of the Tenth, which grants all unenumerated powers to the States or the people. The Ninth grants rights, the Tenth restricts powers, and rights begin where powers end. They’re two ways of saying the same thing. Reciprocism has been surprisingly popular, considering its insuperable problems. There are all sorts of enumerated rights, like the right to be free of cruel and unusual punishment and excessive fines, or the right to a trial by jury, that aren’t implied by the absence of a federal power. The Federalists made this same reciprocal argument against a Bill of Rights at the Convention, and they lost. “It is odd indeed,” as Randy Barnett* says, “to insist that the best interpretation of the Bill of Rights is based on the theory of its most vociferous opponents.”

The text doesn’t support reciprocism either. State governments are enjoined from violating whatever rights the Ninth may grant, by the doctrine of incorporation, which reads the Fourteenth Amendment as applying the Bill of Rights to the states. Incorporation clearly must include the Ninth Amendment; otherwise the rights it grants would be “disparaged” by comparison with the enumerated rights. So the Ninth enjoins state and federal governments equally, while the Tenth grants powers to state governments that the federal government does not possess. These are distinct propositions.

(I have never understood the necessity for incorporation doctrine. Every article of the Bill of Rights except the first is phrased in the passive voice: “the right to bear arms shall not be infringed,” “excessive fines shall not be imposed,” etc. These rules seem to me to enjoin the state governments equally with the federal, ancient case law to the contrary notwithstanding. But until I persuade the Supreme Court to go along with this view incorporation will have to do.)

There are other variations. Raoul Berger argues that even if Ninth Amendment rights exist, they can’t be enforced by the federal government, which is a pretty undistinguished argument from such a distinguished legal scholar. If they aren’t enforceable, how they can be rights at all? If that’s not “disparagement,” relative to enumerated rights, I don’t know what is.

All of these theories effectively read the Ninth Amendment out of the Constitution, thus violating the first principle of Constitutional interpretation: every clause has an effect. This has been reaffirmed countless times and was first stated by Chief Justice Marshall in Marbury v. Madison: “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.”

There must be some unenumerated rights that are not implied by the enumerated restraints on government power. A few theorists acknowledge this; but as their next line of defense propose to read these rights as narrowly as possible. Calvin Massey, for example, proposes that they be limited to “those having a clear textual foundation in state sources in existence at the time of the Constitution’s adoption.” Of all the clauses in the Constitution the Ninth Amendment, which is deliberately open-ended, lends itself least readily to this sort of historical analysis. The Founders could have easily enumerated these rights from the states if that was what they had in mind.

I see only one way to construe the Ninth Amendment, and it requires, as one might expect, the Founders steeped as they were in Blackstone and Locke, natural rights theory. Now I’m as leery of this venture as the next blogger without a law degree, maybe more so. Generally I’m a pretty strict textualist in matters of Constitutional interpretation, but the Ninth Amendment commands us to look outside the text. This doesn’t mean judges can construct new rights willy-nilly. They must be constructed by analogy with, and under the same philosophy that informs, the enumerated rights. All enumerated rights involve either spheres of action in which the government cannot interfere (e.g., freedom of speech, press, and assembly) or procedural restraints when it can (e.g., trial by jury, unreasonable search). Unenumerated rights must be of the same nature. So there can be no Ninth Amendment right to, say, welfare, or, as Ronald Dworkin has proposed, to “equal dignity.”

John Hart Ely, who himself takes refuge in Ninth Amendment reciprocism, calls this “scary,” and I agree with him. But Constitutional interpretation is a scary business, and in any case, the judiciary constructs rights all the time. The Supreme Court has decreed, besides the famed right to privacy, a right to travel, a right to marry, a right to keep one’s citizenship, and many others, mostly under cover of murky and abstruse doctrines like “equal protection” and “substantive due process.” I wholeheartedly support such decisions as Loving v. Virginia, which struck down anti-miscegenation laws, and Griswold, which struck down restrictions on the sale of birth control. I merely object to the tortured reasoning to which the majority subscribed in these and related cases. Judges make moral and philosophical judgments, and the Ninth Amendment authorizes them to do so, in plain sight.

*Most of the arguments in this article, good and bad alike, come from one or another of the contributors to Barnett’s excellent anthology of essays on the Ninth Amendment.

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