Balkinization  

Monday, May 07, 2007

Re the Second Amendment+why we can't adopt a rational agriculture policy

Sandy Levinson

Although I could have simply put most of this as a long comment to Jack's excellent post, I thought that I'd put it in a separate posting. So, for the record:

1) Though I'll confess to being delighted to be mentioned in our "paper of record" (or anywhere else, so long as nobody calls me "stupid"), I think that its goes embarrassingly overboard in imputing causal efficacy to me and my associates with regard to the Fifth and DC Circuit decisions on the Second Amendment. I agree with Jack that one has to "credit" that particular social movement called the NRA, plus the fact that the Republican Party, by winning the presidency and being able to appoint conservative judges, put in place at least some judges who would credit a "stronger" reading of the Second Amendment. No doubt these judges are pleased to quote political liberals, but that says nothing about causation. All good brief writers know to quote "surprising" support for their views, along with more predictable citations.

What cuts against the "causal" hypothesis is that no judge identified as "liberal" has, to my knowledge, announced a change of mind following reading anything that Amar or I, or especially Tribe, by far the most important of all of us, has written.

2) The Second Amendment is a wonderful example of the tension between "static" and "dynamic" interpretation. Most liberals seem to believe that it is sufficient to address what the Amendment (might have) meant in 1791, and they usually offer a quite limited meaning, i.e., the "state militia" account. As it happens, I think that a broader reading is equally legitimate, but let's assume for the moment that my friends Jack Rakove and Paul Finkelman, among many others, are correct in their quite modest readings of what Jack Balkin would call the original "expected meaning" of the Amendment. The fact is that by the mid-19th century, as Akhil in particular has shown, what has come to be called the "individual rights" view has gained real purchase, the best evidence being Dred Scott, of course, though there is also evidence from the Reconstruction Era, as Jack notes.

3) I continue to believe that the Democratic Party has paid a real price by supporting essentially symbolic ("expressive") legislation that really doesn't do much to "control" firearms, but does work very effectively to drive Democratic voters into the waiting arms of a Republican Party that appears to treat them with respect (even as it is ruthlessly indifferent to their "class" interests). No sane Democrat could believe that passage of the 1994 "assault weapons ban" was worth the price of losing the House of Representatives. (Morris Fiorina has estimated that the bill cost the Dems at least six seats, including those of Speaker Foley (Eastern Washington) and Judiciary chair Jack Brooks (from Texas).)

4) Changing the subject: The Times Magazine also published a brief letter to the editor commenting on an article by Michael Pollan that argued that we were oversubsidizing the growing of crops that are bad for us (e.g., corn and soy). He writes, for example, "The reason the least healthful calories in the supermarket are the cheapest is that those are the ones the farm bill encourages farmers to grow." Not surprisingly, he concludes by begging Congress to vote for a "better" farm bill. I found his article quite compelling, but doubted that his plea would be effective. Regular readers will recognize the source of my letter:

The fact that each state has an equal vote in the Senate means that the “farm states,” which tend to be small-population states, have political clout out of proportion to their actual population. One might hope that political leaders would learn the lessons Pollan is trying to teach. But our very political system makes it almost certain that, even if leaders try to lead, they might well be defeated not by the force of better argument but by an American political system that deals from a stacked deck as we try to adopt a sensible farm policy.


This simply underscores, yet once more, that there are real costs attached to our "hard-wired" structures. Whatever the Framers intended, the "equal representation in the Senate" rule does its own part in contributing to obesity and the diabetes epidemic in the US.


Comments:

Sandy,

Your final comment seems to be an allusion to the work of someone else, but I welcomed the reminded.

The more I think about the Senate, the less I like it. At the outset, it was the portion of the legislature that was created to protect the interests of wealthy landowners in the less populous South, who knew that in a truly representative democracy, they’d be walked all over. Realize that when I say Southern landowning interests, what I really mean is slavery, which is what the Senate protected for many years. After the Senate failed to protect slavery, the Senate turned the filibuster against desegregation.

You could make the claim that the Senate exists to protect minority interests. In a way it does, but I think the judiciary probably does it with a little more sincerity. I can’t recall the Senate ever protecting a weak or underprivileged minority. They’re more special interest than minority really.

Can anyone think of a time when a Senate filibuster was used to protect the poor, women, racial minorities, disabled people, etc?

Thanks,
Geoff
39north.blogspot.com
 

Well, Geoff, William Jennings Bryan would have said that farmers are a weak and underprivileged minority. To be sure, they aren't the minority you like.
 

Just because there are many, many, many fewer Walton heirs than non-Walton heirs does not mean they are a weak and underprivileged minority.

Even more pithily: my heart bleeds for the prison guards of this great land, too.

Shorter still: schmuck.
 

I don't remember the priest telling me when I went to Confession when I was a kid, "Well, Lance, it was wrong of you to disobey your mom and talk back to her like that, but since you set the table every night and do your homework and sent your aunt a birthday card, what the heck! You're a good kid. Your sins are forgiven automatically. No need for you to do any penance." 糖尿病 文秘 心脑血管 高血压 高血脂 冠心病 心律失常 心肌病 中风 糖尿病症状 And maybe it's happened a few times and I haven't heard about it but I can't recall a judge ever letting somebody walk on the grounds the crook was a good guy and his friends really like him.
 

Well, Geoff, William Jennings Bryan would have said that farmers are a weak and underprivileged minority. To be sure, they aren't the minority you like.

Farmers at that time certainly were NOT a minority. They may have been weak and underprivileged, though it's hard to characterize 70% or so of the population in those terms.
 

Prof. Levinson:

4) Changing the subject: The Times Magazine also published a brief letter to the editor commenting on an article by Michael Pollan that argued that we were oversubsidizing the growing of crops that are bad for us (e.g., corn and soy). He writes, for example, "The reason the least healthful calories in the supermarket are the cheapest is that those are the ones the farm bill encourages farmers to grow."

Do you have any idea why he argues that these crops are "bad for us"? In particular soy.

Cheers,
 

As an aside, the full DC Circuit declined to review the Parker case. DC now has the opportunity to appeal the panel decision to the Supreme Court. There would appear to be adequate grounds for the Supremes to take the case with a split between the circuits and a nearly complete lack of guidance from the Supremes on the issue since the enactment of the Constitution. (I do not count the muddled Miller decision as "guidance.")

This could get interesting.
 

Well, for one thing, high fructose corn syrup has a substantially worse effect on blood sugar than does the equivalent sweetness in sucrose from sugar cane. That's been pretty well established clinically. Replace sucrose with fructose, and you'll increase both diabetes and obesity.

Then there are compounds in soy which mimic the effects of certain hormones. Whether this is "good" or "bad" depends on your circumstances, of course, but if soy weren't a food, it would probably be regulated as a pharmaceutical, the effect is significant enough.
 

Brett:

Well, for one thing, high fructose corn syrup has a substantially worse effect on blood sugar than does the equivalent sweetness in sucrose from sugar cane. That's been pretty well established clinically. Replace sucrose with fructose, and you'll increase both diabetes and obesity.

"Pop science", me lad. "Replace sucrose with fructose"? Sucrose becomes glucose and fructose before it's taken up by the intestines. And fructose is sweeter than glucose or sucrose, so that less carbohydrate is needed for the same effect on the palate. But the most commonly ised 42% fructose HFCS, while cheap, contains less fructose than the equivalent amount of sucrose. See, e.g., here. Increase the fructose (through enzymatic conversion), and you also increase the sweetness and need less (but it's more expensive to do that, and manufacturers go for "cheap").

The studies of fructose and obesity looked at fructose intake. But the replacement of sucrose with fructose (or, more accurately, HFCS) doesn't necessarily lead to a dietary increase in fructose, so I think that you may be barking up the wrong tree. A much more compelling case may be made for bad diets and food with too much sugar, period.

Then there are compounds in soy which mimic the effects of certain hormones.

Phytoestrogens, eh? I think the jury is still out on that as well.

... Whether this is "good" or "bad" depends on your circumstances, of course, but if soy weren't a food, it would probably be regulated as a pharmaceutical, the effect is significant enough.

Huh?!?!? Since when? Not to mention, we don't regulate coffee (caffeine), tea (theophylline, "leaf of the gods"), chocolate (theobromine, "food of the gods", I love that name), gingko biloba, St. John's wort, alcohol, etc.....

Cheers,
 

You'll notice, Arne, that everything you named there has been consumed for a long, long time, and is a natural product. What I meant, of course, is if soy were invented, today, it would be regulated as a pharmacutical.
 

This comment has been removed by the author.
 

re Levinson's doubt about his own influence: perhaps on guns, where there is relative unanimity among Conservatives, the citation means little. But as a larger issue, there are real fractures and divides within the conservative legal community. Liberal scholars who hue to enough conservative precepts can certainly have an effect on the way those play out, and as a result what kind of conservatives come to the bench.

re Brett and Corn vs. Cane: What I question is where the causation for picking corn over sugar lies. I would think it would have far more to do with our protectionist sugar tarrifs than with corn subsidies, which are partly ethanol subsidies.
 

Not to belabour the obvious, Brett, but:

You'll notice, Arne, that everything you named there has been consumed for a long, long time, and is a natural product. What I meant, of course, is if soy were invented, today, it would be regulated as a pharmacutical.

And if we all had wings, we'd speak Canarian. But soy beans weren't invented, and they have been consumed for a long time. But, to get back to discussion of matters of fact, I think the verdict is still out on the health implications of the foodstuff soy.

Cheers,
 

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