Saturday, February 21, 2004


Evangelical Leaders Unhappy With Bush

The Washington Times reports that several figures in the Religious Right are openly criticizing President Bush for failing to respond more forcefully to the rise of same sex marriage and other cultural issues, and that Christian conservatives may stay home rather than go to the polls in 2004.

"The strength of this president is in his convictions, but our people do not admire his indecision and lack of leadership on an issue so basic as the sanctity of marriage," [Concerned Women for America President Sandy Rios] said.

Religious conservatives helped Ronald Reagan win the presidency in the 1980s and helped Republicans retake the House and Senate in 1994, but complain that they have little to show for their loyalty to the GOP.

"I'm not blaming the president, but religious conservatives have been doing politics for 25 years and, on every front, are worse off on things they care about," said Gary Bauer, president of American Values. "The gay rights movement is more powerful, the culture is more decadent, the life of not one baby has been saved, porn is in the living room, and you can't watch the Super Bowl without your hand on the off switch."

These criticisms are to be expected. George Bush is, after all, a part of the conservative Christian movement, and as president, he is the de facto leader of the Religious Right. Having put one of their own in the White House, Christian conservatives naturally want to see some results. But Bush is also a crafty politician, and he does not want to do anything that will make him be perceived of as intolerant. So you will get no ardent denunciations from this President. Rather, you will get nuanced and carefully calibrated support for Christian conservative causes designed not to offend too many voters in the Republican coalition who are not Christian conservatives.

Gary Bauer wonders why things have gotten worse since 1994. In one sense, they haven't gotten worse. His party controls all three branches of government, and the President has stocked the judiciary and the executive branch with people who are either Christian conservatives or are sympathetic to their views on cultural issues. What Bauer is objecting to is long term shifts in American culture, which he is fighting against, but which are more powerful than either his followers or the Republican Party. And he is putting pressure on the President to correct those trends. Yet, as Bauer himself realizes, there is only a limited amount that the President can do.

Bauer and other Christian conservatives are thus deliberately putting the President between a rock and a hard place. In order to gain their votes he must shift symbolically to the right and denounce the decay of American culture-- including most prominently the issuance of same-sex marriage licenses in San Francisco (and now New Mexico). Yet the President cannot afford to do so, because the general election season has all but started. But Bauer and his allies don't really care. They want the President to show that he is one of them; they want him to exercise moral leadership. What they don't realize is that this President only exercises "moral leadership" when he thinks it won't cost him any votes. In matters of politics, he is a complete and thorough opportunist.

Thursday, February 19, 2004


Is San Francisco Starting A Trend?

Other cities are considering issuing licenses for same sex marriage, the Washington Post reports.

What's important is not how many cities actually go ahead and do this, but the fact that the idea has moved from the positively unthinkable to the positively thinkable. And what is more important is that elected officials and not courts are taking the lead. As I argue in the previous post, that is how constitutional change occurs.


How Constitutional Meanings Change

Not by courts, but through political action. Courts are often the last to get involved.

What is remarkable about Mayor Daley's recent statement that he would have "no problem" with the Cook County clerk issuing same sex marriage licenses is that a number of prominent politicians are now standing up and saying that this is what fairness and equality means. Such statements in the context of larger social movement activism are quite important in reshaping public opinion, and, in turn, reshaping constitutional norms.

It's important to understand that politicians can do this for good or for ill, in ways we like and in ways we don't like. The Civil Rights Movement and the Civil Rights Act of 1964 reshaped the meaning of the Equal Protection Clause, but so too did massive resistance in the South, George Wallace standing in the school house door, and Richard Nixon's running against busing and in favor of "law and order" in the 1968 election. The point is not that politicians always do good when they promote constitutional norms through political action. The point is that the meaning of the Constitution is driven and produced by political activism, and later confirmed by judicial decision. People often complain that courts are writing their political beliefs into the Constitution. But if we look at the way the system actually works, its not just the courts, or even primarily the courts. It's all of us. This is the most important lesson about how constitutional change actually occurs.

Wednesday, February 18, 2004


More on Public Universities, Public Subsidies, and the Culture of Free Expression

Juan Non-Volokh points out correctly that if market forces by themselves would be insufficient to produce public goods, governments can either provide the goods themselves or subsidize private entities to produce them. Therefore governments might help support an infrastructure for free expression through subsidizing private universities instead of creating public universities.

That sounds fine to me. After all, as I said in my previous post, I've taught both in public universities and private universities that are heavily subsidized by the government. Both are important to production of a culture of free expression and a vibrant public sphere. If Juan prefers private universities subsidized by government funds, more power to him. But the important point-- and the point of my original posting-- is that government has to take affirmative steps to create the conditions for the exercise of free expression. It's not just a matter of preventing government from censoring individuals.

But Juan also wonders whether even public subsidies are a good idea:

The relevant comparison must always be between the admittedly imperfect private marketplace and the equally -- if not more -- imperfect government alternative. Too often, the assertion of market failure is taken as sufficient justification for government action without any consideration of whether the policy proposal in question, as it is likely to be implemented in the real world, will actually produce a superior net result.

Well, yes, in some cases its possible that remedying market failures either through public subsidizes or through direct government provisions of a public good can be worse than leaving things to the unassisted private market. But I have to say that providing education, and particularly higher education, is not one of those cases. And note that by education here I am speaking of more than mere vocational training, which markets can more easily provide; I mean education in features necessary for individuals to participate in governance and in culture generally. This sort of education is one of the clearest examples of a public good other than perhaps public defense (which is dealt with by a combination of government provision of goods and outsourcing to private entities according to government specifications). Sometimes the cure is worse than the disease, but this abstract formula becomes less plausible when you are talking about public education, and particularly higher education. If Juan has reasons to believe that Americans are actually made worse off by having a rich public culture produced by a combination of government subsidies and government provision of higher education, he has not yet revealed them.

Glen Whitman thinks he has the killer argument:

If the government could distinguish between the good and bad ideas, then it could subsidize only the good ones. But I have little or no confidence in government's ability to make such distinctions wisely, and the blanket subsidization of public universities assures funding of both the good and the bad. The strongest case for freedom of expression, I would argue, rests not on economic efficiency but on the inherent danger in giving a coercive government the power to decide what's good and bad in the realm of ideas. From that perspective, David Bernstein's position makes a great deal of sense: having public universities ipso facto puts the government in the position of having to make distinctions that it has no business making.

Glen's assertion that goverments should never be in the business of deciding which ideas are good and which are bad is much too broad. To a very large extent governments are in the business of deciding which ideas are better than others, because that is the basis on which they enact (or should be enacting) public policy. Moreover, governments are always in the business of promoting some ideas over other ideas. Does Glen seriously want to blow up the Washington Monument or the Lincoln Memorial? To keep children from visiting said memorials on the grounds that they will be unduly influenced to think that Washington and Lincoln were great presidents? Does he think that there is something nefarious in government officials asserting that democracy is good and tyranny is bad? (Would he object to the creation of a government program designed to promote belief in democratic forms of government over non-democratic forms? Does he believe that President Bush was wrong to give a speech advocating democracy and freedom for the rest of the world? Does he think government should not encourage the populace to engage in healthier habits through reporting the results of government funded health studies?)

The question is not whether government may not prefer some ideas or viewpoints over others, but what methods the government may properly use to prefer certain viewpoints and ideas or-- and this is a somewhat different objective-- to promote public expression, debate, and the exchange of viewpoints. In general, government may not punish people through criminal fines or civil penalties because of the viewpoints they express. This is the central meaning of the free speech guarantee in our Constitution. On this Glenn and I presumably would agree. But a healthy system of freedom of expression involves much more than securing this basic guarantee. It requires an educated populace and the opportunity for people to express themselves and participate in the culture in which they live. It requires a rich and vibrant public sphere. That public sphere will not be produced without government subsidy or government provision of important public goods. If government got out of that business entirely, we might still have a formal liberty of expression, because no one would be thrown in jail or fined for stating unpopular viewpoints. But our system of free expression would be much much poorer.

Government works through many different devices other than criminal penalities and civil fines. It also operates through providing public goods and subsidizing others to provide them. Very often government does this to promote particular ideas, for example when it provides free public education, or when it subsidizes charitable organizations. Glen is worried that governments will violate the free speech principle when this happens. He is right to worry: Governments *can* sometimes violate the free speech principle though selective subsidies or through providing public goods-- on this he and I agree. But Glen overstates his case when he assumes that use of subsidies and provision of public goods is always suspicious and tyrannical in the same way that the use of criminal fines and penalities is suspicious and tyrannical. I think there is a big difference between throwing a person in jail for being a communist and deciding to create a public library so that children and adults can have books to read. There is a big difference between preventing all demonstrations on the town green and requiring that all schools that receive public funding teach reading and mathematics. There is a big difference between the local sheriff giving parade permits only to Democrats but not to Republicans and the local university deciding that it will offer courses on microbiology but not astrology. Glen has run together a wide variety of different activities under the simple rubric of government tyranny. It's a much more complicated world than he describes.

As a first amendment scholar, I am the first to admit that when the government gets in the business of subsidizing and providing public goods to promote the infrastructure of free expression it takes on responsibilities to be fair. It does not escape the first amendment simply because it is creating or subsidizing public goods rather than punishing people. But the concerns of the first amendment are very different in the former case than in the latter. This is what Glen's argument overlooks. And, because producing the infrastructure of free expression is so important to a healthy and vibrant culture of free expression, it has real positive value that criminal penalities and civil fines usually do not have.


Antonin Scalia Opposes Brown v. Board of Education, Equal Rights For Women

At least that's what follows from the stump speech he has been giving in various forms around the country:

[Scalia] derided proponents of an opposing judicial philosophy that has reigned for the past half-century and who see the Constitution as a "living document." Such a notion is "phony," he said, adding, "People really believe this nonsense."

The steady application of that philosophy, he said, has meant that justices are free to interpret the document how they wish -- freeing the court from the text.

Such an approach is intellectually suspect and dangerous, he said.

"It's a legal document," he said of the Constitution. "It says some things which are permanent, and it doesn't say other things."

Scalia said originalism used to be orthodoxy. Now, people who profess it are looked on "as if its some kind of an affliction -- like when did you start eating human flesh?"

He said originalism is necessary to constrain judges and keep the balance of power in the country.

"You either have to abandon this idea of a living constitution, or essentially you say to your judges, govern us with no constraints -- except your own judgment.

"I'm not willing to do that."

I guess this is probably as good a place as any to reprint a posting I put on the CONLAWPROF Listserv (run by the most excellent Eugene Volokh) last year. My argument was that Scalia talks out of both sides of his mouth. He supports originalism when he doesn't like a precedent, and he completely ignores originalism and argues for stare decisis when he likes a precedent. This allows him to craft judicial opinions that hew closely to his poiltical views (which are an interesting mix of libertarian and social conservative). Hence there's no reason to think that originalism, at least in the way that Scalia practices it, constrains him any more than the Justices he derides. Here's the post from last year:

* * * * *

[T]he problem with Scalia's use of originalism is twofold: First, it is often badly done, which is the point that Professor Franck makes about [Chief Justice] Taney's originalism [in Dred Scott v. Sanford]: Both Scalia and Taney do questionable history in order to achieve a political conclusion that each likes. Then each of them has the nerve to insist that any other way of interpreting the Constitution is illegitimate and, in Scalia's case, to denounce and ridicule anyone who disagrees with him.

The second problem with Scalia's use of originalism is that it is opportunistic. Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy,
and his favored values. You may remember that a week before Lawrence came down the Supreme Court decided the Michigan affirmative action cases. Neither Scalia nor Thomas said anything in their opinions about the original understanding of the Fourteenth Amendment in those cases, nor, to my knowledge has either seriously engaged with that history in any of their opinions on race relations. But that history sheds some degree of doubt on whether colorblindness is the operative meaning of the 14th amendment's section one, at least as originally understood by its framers. (And indeed, although it is certainly not conclusive proof, the Congress that passed the 14th amendment engaged in race conscious affirmative action in providing educational and social welfare benefits for blacks, including blacks who were not newly freed. (See Jed Rubenfeld's 1997 article in Yale Law Journal on this body of legislation.). This legislation was in addition to the Freedman's Bureau acts, which can be understood as either race conscious or race neutral depending on your interpretation of them. The history of Congressional affirmative action is not conclusive proof because Congress was not bound by the 14th Amendment, but then of course, on that line of argument, it's unclear how either Scalia or Thomas could have joined the Adarand decision.

At the end of the day, Scalia may be correct that the best translation (in Larry Lessig's terms) of the original understanding is a strict colorblindness rule. But I doubt it, and even if that is so, Scalia refuses to adopt that sort of translation methodology, because it is the very sort of living constitutionalism that he disdains. So he can hardly employ it to justify his position in the Michigan cases.

Stare decisis [respect for previous precedents] must temper originalism, and that is how many non-originalist decisions like Bolling v. Sharpe [which struck down segregation in the D.C. schools under the Fifth Amendment's Due process clause] (and Adarand) [which held that federal affirmative action programs are suspect under the Fifth Amendment's Due Process clause] might be justified for an originalist. The problem is that originalists like Scalia do not consistently follow precedent when it conflicts with original understandings, nor do they consistently follow original understandings when they conflict with precedent. Rather, they pick and choose, depending on which constitutional rules they like better. It is unlikely that Scalia would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey [which guarantee rights of abortion and contraception]. He defers to previous precedent (or expands on it) when it suits him, and he waxes eloquent about returning to the original understanding when that suits him. And all the while he insists that people who disagree with him are making illegitimate arguments, and are imposing their personal preferences on the Constitution. The irony is that when originalism is opportunistically applied in the way that Scalia employs it, it allows judges to do pretty much the same thing as the judges that Scalia criticizes. In this sense, Scalia's brand of originalism fails to perform the very function he says it should perform: the function of constraining judges. Having seen Scalia's body of work since he joined the Court, I have no reason to believe that Scalia is any more constrained from pushing the Constitution in his preferred direction using an artful combination of textual, originalist, and precedental arguments than William Brennan was. Scalia is the living constitutionalist who dares not admit that his is a living constitutionalism of the right rather than of the left.

Tuesday, February 17, 2004


Save Freedom of Speech, Get Rid of Public Universities?

A provocative post by David Bernstein, who by the way, is speaking here today at Yale, suggests that civil libertarians should be opposed to public universities on free speech grounds: "The inevitability of content-based regulation of academic expression on public university campuses suggests a strong civil libertarian case that government should not be in the business of running universities at all."

This remark demonstrates an interesting and important split between David's approach to freedom of speech and mine. David is interested in preserving individual rights of freedom of expression from government interference; I'm interested in promoting a democratic culture in which people are free to participate in culture and express themselves. For David, freedom of speech is the sum of individual rights of free expression against government interference. For me, freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression, produce an educated citizenry and give them the tools and the practical opportunity to participate in the growth and development of culture. These infrastructural elements include, among others free public education, public libraries, common carrier rules in telephony and government sponsored scientific research. Put in economic terms, the infrastructure of free expression is a public good that markets will underinvest in. Put in sociological terms, the infrastructure of free expression is a precondition to a vital public sphere and the vigorous exchange of ideas. You will not be surprised, therefore that I believe that public universities (and indeed public education generally) are central (although not sufficient) ingredients of producing a culture of free expression. Put in economic terms, once again, a healthy and well functioning system of freedom of expression requires a vast array of public goods to supplement, undergird, and enrich civil society, private institutions and the work of markets.

David points out, and rightly so, that when governments run universities, they will engage in content based (and viewpoint based) regulations of speech. But this begs the question whether such regulations violate the free speech principle. Some of them surely do, but many more of them do not. When the government is engaged in the promotion of professional and academic standards, the free speech principle is not necessarily violated. Thus it is perfectly fine for a university to have a department of biology and not astrology, and to refuse to tenure people who believe that the best way to study biology is through astrology. Nor is the free speech principle necessarily violated when the government regulates speech in order to manage its internal bureaucracies. (These points are central to my colleague Robert Post's theory of freedom of expression).

David might insist, nevertheless, that lots of line drawing will be required to sort out appropriate regulations of speech from inappropriate ones; there will be many complicated cases that risk violating individual's rights and that we would be much better off if governments never ran universities, because then the maintenance of professional standards and management of bureaucracies would be entirely in private hands and so there would be little or no chance that the free speech principle would be offended. On this point I respectfully disagree. Without public universities, our cultural life would be much poorer. I now teach at a private institution, but one heavily subsidized by public money, and I spent my formative years as an academic at two public institutions, the University of Missouri at Kansas City and the University of Texas. Precisely because public education produces so many positive public externalities that, almost by definition, cannot be adequately captured by markets, it is highly unlikely that markets would take up the slack if public universities were abolished. The history of universities, even nominally private ones, is the history of a very significant amount of state support, whether it be sponsorship of Kings (as in many of the Oxbridge colleges) or the use of land grants to support public education. Indeed, democratizing education, and particularly higher education-- one of the most important achievements of the twentieth century-- was due in large part to government decisions to invest in the public. Those investments have paid off handsomely if imperfectly-- they have contributed greatly to the practical freedom that Americans enjoy today and the health and vibrancy of American artistic, intellectual, scientific and political life.

In short, freedom of speech is more than the sum of all individual free speech rights against the government. Freedom of expression is a cultural system that produces a public sphere of inquiry, learning, artistic expression and political contestation. To understand freedom of expression it is not enough to prevent government restraints. We must pay greater attention to the institutions and practices that make this public sphere healthy and vibrant. Some of those institutions and practices are private entities and result from market forces; but a great many of them are not.