Balkinization  

Monday, June 27, 2011

More on the Roberts-Kagan exchange

Sandy Levinson

Apropos of Heather Gerken's prior posting, which I think is spot on, I offer two further observations: The Roberts-Kagan exchange, though sharp, doesn't begin to compare in venom to that between Roberts and Breyer in Parents Iinvolved. At the very least, those pundits who initially viewed Roberts as likely to take the Court in a more civil direction might further reconsider their view. Secondly, Kagan's opinion is marvelously written, the first opinion almost literally in years that I've genuinely enjoyed reading, for reasons that are at least partially independent of my agreement with its argument. Most of it, I believe, is fully readable by someone without legal training. Which is not to to say, of course, that it suffers with regard to its more legalistic arguments. One should remember that as a professor she wrote one of the very best (and very long) articles on the core meaning of the First Amendment. I presume that it would have been regarded as tacky for her to have cited it, but there's no doubt that she has a deeper theoretical understanding of the First Amendment than any of the other justices, which, I suspect, helps to account for the impatience that Heather detects with regard to the majority's failure to acknowledge that in no way at all is the Arizona scheme content-discriminatory.

Comments:

I was struck by Justice Kagan's down to earth style too (it is not the only opinion where, like when reading some books, you can just hear her talking as if you are right there). It is surely the sort of thing that helped lead Obama to pick her, even if some rather someone more strongly liberal leaning on certain issues.

As to the article cited, along with her scholarly article on agencies, it might have been helpful if the senators seemed to care and asked her some more questions about them.
 

Kagan writes like a very talented political speech writer setting out the progressive political position for limiting business and "special interest" speech as per se corrupting. Her legal reasoning is less convincing.

Kagan's argument that the Arizona subsidy expands speech would have more weight if the state granted the subsidy to all candidates. In reality, this measure is meant to reduce business and independent group speech by rewarding those who agree to forego private donations to rely upon government financing and by rendering the effort to obtain donations an unrecoverable cost.
 

And there we have the extreme illogic that follows from accepting a reasonable proposition, i.e., that preventing people from spending money to purchase advertising is a restriction on speech, and taking it to absurd conclusions, i.e., that each dollar donated to a campaign is a unit of speech, and the goal of the first amendment is to maximize those units. The Arizona law does not restrict expenditures but prevents those expenditures from conferring an advantage to the candidate making them. If the result is that some people spend less money to elect a candidate, that can hardly be said to restrict their first amendment rights.
 

Bart,

I'd be genuinely interested on how you judge the invalidation of the Arizona voters' initiative by the Supreme Court.
 

Bart writes
"Kagan's argument that the Arizona subsidy expands speech would have more weight if the state granted the subsidy to all candidates."

I doubt it because you seem to insinuate that the subsidy is somehow questionable in and of itself. Kagan is very careful to present SCOTUS decisions that have validated her “progressive liberal position” for public financing of only those candidates who opt in and forego private donations. You may object because Buckley v. Valeo is from the Burger Court but Kagan is no dummy, and she presents Citizens United, as well. If I remember well, conservatives had little to object to that decision.

Furthermore, you would have to convince me that her argument what distinguishes the Arizona provision from the Millionaire’s Amendment is only political rhetoric. I thought it a brilliant piece of logical reasoning, if not a legal one which I lack sufficient knowledge to really judge. (Note that she offers a more cogent defense of Alito’s reasoning in Davis than Alito himself.)
 

Lest I might be misunderstood, let me rephrase the question to Bart above:

How do you judge the fact that the Supreme Court is invalidating a state voters' initiative?
 

Augo:

Bart, I'd be genuinely interested on how you judge the invalidation of the Arizona voters' initiative by the Supreme Court.

How so?

The fact that the law is enacted by initiative should not change the constitutional calculus.

As the purest distillation of the popular will in our representative democracy, initiative law tends to have more political weight in that legislatures are reluctant to directly cross their constituents by reversing an initiative.

To the extent that courts actually follow the polls, perhaps courts might be a bit more reluctant to find initiatives to be unconstitutional. I see no evidence of it, though.

BD: "Kagan's argument that the Arizona subsidy expands speech would have more weight if the state granted the subsidy to all candidates."

I doubt it because you seem to insinuate that the subsidy is somehow questionable in and of itself.


No. As a libertarian/conservative, I think subsidies are bad policy, but one that is given to everyone has no immediately apparent constitutional defect.

I thought it a brilliant piece of logical reasoning, if not a legal one which I lack sufficient knowledge to really judge.

My impression of Kagan increased substantially after reading this dissent. It was very well written.

The Court's left has not offered a particularly notable writer for a long time. Maybe Kagan can change that.
 

Bart:

Thanks for responding my question and my critique.

After googling a little, I found out that you don't decry judicial review per se - which many conservative critics do. I wonder though, if for a libertarian there should not be an absolute protection of unalienable individual rights not dependent on any confirmation of the judicial review by the legislature as you seem to suggest.

As regards the subsidies, let's separate the political from the legal aspects. It would seem to me that it is established jurisprudence that candidates who opt into public camapaign financing might receive subsidies while those who opt out might not. You do criticize them for political reasons but they are - for now - constitutional.

That's why I think that Kagan's distinction between the Davis v. FEC discriminatory subsidies and the trigger mechanism described in Arizona Free Enterprise v. Bennet is so important.

I am happy that you concur in the appreciation of Kagan's writing but would you say that CJ Roberts still has the better legal arguments?
 

Augo:

After googling a little, I found out that you don't decry judicial review per se - which many conservative critics do. I wonder though, if for a libertarian there should not be an absolute protection of unalienable individual rights not dependent on any confirmation of the judicial review by the legislature as you seem to suggest.

Libertarians generally believe that all people enjoy natural rights to liberty which are not provided by the state and thus theoretically are not reliant upon a grant by nor subject to infringement by the legislative and judicial branches.

Constitutions are created to limit the scope of government power so that it does not infringe upon our natural liberties.

Because part of the judicial power is to interpret the law, constitutions are impliedly subject to judicial review. That being said, the Founders erred by not providing checks and balances on the judicial power the same way they did on the elected branches.

I am happy that you concur in the appreciation of Kagan's writing but would you say that CJ Roberts still has the better legal arguments?

Let me begin with the caveat that I do not possess much familiarity with this area of the law and do not claim in any way be an expert.

My first impression upon reading this law was that it violated equal protection in that the government subsidy was meant to disadvantage the fundamental right to private political speech for no other reason than the drafters considered business and special interest group private speech to be per se corrupting of the political process (as Kagan made eminently clear from the outset of her dissent). This is not a compelling reason to abridge speech.
 

For many libertarians liberty = selfishness.
 

Selfishness? From what I've seen, it's more often naiveté, and behind that, a cheerful indifference to solving real-world problems. I'm not sure this scores higher morally than selfishness, so take this as a technical correcction.
 

Shag/jpk:

Libertarianism can be better summed up as mind your own business, I will live my life as I please.
 

A single word even better yet describes our yodeler's descriptive:

"Libertarianism can be better summed up as mind your own business, I will live my life as I please."

"Anarchy!" [Memo to Stephen Colbert, this is the "Word." Spread it.]
 

shag:

Have you ever noticed that the only folks who call themselves anarchists share politics that fall between socialist and revolutionary Marxist and always seem to be demanding more government?
 

I don't know any folks that call themselves anarchists. Do you? Perhaps our yodeler has cites to back this up:

" ... that the only folks who call themselves anarchists share politics that fall between socialist and revolutionary Marxist and always seem to be demanding more government?"

Did Ted Kaczynski demand more - or less - government?
 

I've met a few people who called themselves anarchists, though they were, given my associations, anarcho-capitalists, not socialists. It's my impression that essentially every 'anarchist' you ever see on the news, however, is just a thug who heard the phrase, "Bomb throwing anarchist", and thought throwing bombs sounded cool. Not a real anarchist among them, as demonstrated by the fact that they're generally protesting against free trade.

My complaint about the Arizona law is not that it's a 1st amendment violation, it's an "equal treatment under the law" violation. The government is not entitled to pick favorites. If it's going to subsidize candidates, (And I really think, as a policy matter, states shouldn't, and as a constitutional matter, the federal government can't.) it should subsidize everybody who makes the ballot equally.

Not use the fact that somebody, somewhere, is engaged in constitutionally protected speech, as an excuse to play favorites against the beneficiary of that speech.
 

Shag from Brookline said...

I don't know any folks that call themselves anarchists.

You only need watch today's news from Greece where self proclaimed anarchists vandalized Athens in protest of a rollback of the Greek socialist state.

These clowns are a regular sideshow protesting capitalism at the G8 and IMF meetings.

Did Ted Kaczynski demand more - or less - government?

To the extent that you can make any sense out of this pathetic man's ramblings, he called for a "system" to control human behavior and reverse industrialization. This is hardly libertarian, but is a cross between modern socialist anarchism and deep green theory.
 

But Ted K. wanted to live his life just as he pleased and for others to mind their own beeswax, like what our yodeler said earlier in defining libertarianism. Surely libertarianism has room for Rand-y people.
 

Bart:

Thank you for your comments. I think we may let it stay there, for now, and I guess on certain things we'd probably agree that we disagree.

However, I'd like to add a comment on the "anarchist" side show. You write

"Have you ever noticed that the only folks who call themselves anarchists share politics that fall between socialist and revolutionary Marxist and always seem to be demanding more government?"

I am not sure if that's really a fair characterization of all folks who call themselves "anarchists". In my pie-in-the-sky dreams I am a "libertarian socialist" and if I share something with the rowdy youth of Athens, it's a deep distrust of authority. Instead of getting too judgmental at the outset, I think it's worthwhile to explore whether there is anything useful to be learnt from studying anarchism.

I think the website of the Anarchist Writers (http://anarchism.pageabode.com) is a rather useful source.

They respond to the question "What is Anarchism?" as follows (http://anarchism.pageabode.com/afaq/secA1.html):

"Anarchism is a political theory which aims to create anarchy, 'the absence of a master, of a sovereign." [P-J Proudhon, What is Property, p. 264] In other words, anarchism is a political theory which aims to create a society within which individuals freely co-operate together as equals. As such anarchism opposes all forms of hierarchical control - be that control by the state or a capitalist - as harmful to the individual and their individuality as well as unnecessary."

As regards your observation that anarchists "share politics that fall between socialist and revolutionary Marxist", I would present the following line of thought (http://anarchism.pageabode.com/afaq/secA1.html#seca13):

"Considering definitions from the American Heritage Dictionary, we find:

"LIBERTARIAN: one who believes in freedom of action and thought; one who believes in free will.

"SOCIALISM: a social system in which the producers possess both political power and the means of producing and distributing goods.

“Just taking those two first definitions and fusing them yields:

LIBERTARIAN SOCIALISM: a social system which believes in freedom of action and thought and free will, in which the producers possess both political power and the means of producing and distributing goods.

Browsing a little on the page you'll find as stern a denunciation of statism as well as of capitalism – with the futile, somewhat petty explanation why anarcho-capitalists aren't real anarchists. I guess you’ll find as staunch a rejection by your garden variety of US libertarian why libertarian socialists can’t possibly be libertarians. And, yes there is the fundamental difference in viewing the property of the means of production that separates the mini from the mini-mini camp. Each is convinced that without the absence/presence of this particular private property right you can’t be libertarian.
 

Augo:

Very interesting take.

A good rule of thumb is to ignore what people call themselves and instead judge their ideology by their acts. The acts of modern anarchists have about as much in common with the dictionary definition of the term as the acts of modern liberals have with classical liberalism.

As for your interesting concept of libertarian socialism...

Socialists and libertarians both claim to support democracy and freedom, but offer polar opposite routes to get there.

Libertarians (or classical liberals) believe that the people and government are distinct and that the latter posses the greatest threat to the individual freedom of the former.

Socialists assume that the people = a socialist government and thus any acts of the socialist government are democratic. Furthermore, they believe that the greatest threat to the freedom of the people are powerful private interests. Thus, a socialist government checking or eliminating powerful private interests increases freedom.

Thus, I would contend that libertarian socialism is a contradiction in terms.

As a side note, I will be publishing a book this fall arguing that socialism has evolved from its classical form of government ownership of the means of production to direct the economy and redistribute wealth to government use of police and tax powers to to direct the economy and redistribute wealth.

Ownership of the means of production is only a convenient means of achieving the socialist goals of directing the economy and redistributing wealth because the property rights of a business owner includes directing the business and setting the compensation of the owner and employees.

Increasingly, socialist governments instead use their police and tax powers to seize the property right to direct a business and redistribute the wealth created by that business. In sum, socialists are using progressive tools to achieve the same socialist ends while calling the result a reform of capitalism.

A French Marxist philosopher by the name of Andre Gorz developed this theory of "revolutionary reform" and it was eagerly embraced by the American New Left and community organizers like ACORN as a form of guerilla socialism they called "non-reform reforms." The Obama Administration employed it in their "clean energy economy" policies and in Obamacare.
 

While our yodeler and Brett do not walk in lockstep on every issue, I was surprised that Brett commented on the anarchist/anarchy exchange between our yodeler and me, diverging from our yodeler. It finally sank in that perhaps Brett, a man of unlimited arms, wanted to avoid the socialist/revolutionary Marxist tag from being applied to him with his arsenal as a patriot defending the Constitution as he understands it.
 

You're still obsessing, Shag.

As a libertarian, I am very sympathetic to genuine anarchism, as pretty much any consistent libertarian is going to be an anarchist. My only problem with it is it's unstable in the face of government under present circumstances. Somehow get rid of your government, and you'll either be invaded by a neighboring government, or the mafia will evolve into a government.

As one who is sympathetic to anarchism, I'm of course hostile to the people you see on the news claiming that banner, because they're all a bunch of statist thugs. They give a noble, albeit presently impractical, cause a bad name.
 

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