The Constitution, Aesthetics, Groping, Paradox of Capitalism

1.

I've linked to this video before, but it's worth reposting.

I think this video illustrates a paradox--what' I'll call the paradox of capitalism. On the one hand, capitalism is the best system for innovation and progress. On the other hand, if we all had a big-picture appreciation for everything that capitalism does for us, then we might lose our drive to innovate. Our impatience with the capitalism's innovation from yesterday is the engine that makes capitalism go.

There's a tendency to think that, because we don't appreciate our progress, it doesn't really occur, or it's not that important. I guess you could argue that if our progress doesn't really bring us satisfaction, what's the point? But of course our lives are longer, healthier, we have more time for art and hobbies and family.

Wealth isn't just about stuff. It's about quality of life.

And it doesn't take very long to get to the point where a one-time luxury becomes the standard. The end of this terrific podcast on globalization demonstrates how many "luxuries" from 100 years ago are standard necessities today.

Which also makes me think, what of the things that we consider unnecessary luxuries today are going to be common place in 20 or 30 years? And is it really a fault to be on the cutting edge of that progress? Looking back in time, should we denounce the first people to have running water in their houses as materialistic people craving an unnecessary luxury?

2.

As you know, originalism is my preferred modality of constitutional interpretation. It, however, is far from perfect. One difficulty with originalism is the legitimacy of the constitution itself. Usually you can argue for originalism without really tackling this problem, because almost all Americans argue from the premise that the constitution is legitimate.

There are some arguments against that view, however (note: I admit, I haven't read all the material at the link). I wanted to focus on two: 1. No one today agreed to the constitution, and, therefore, no one is bound by it, and 2. only a small subset of people (white male property owners) could actually exercise the franchise in 1787 so as to consent to the constitution then too. Thus, the constitution was not democratically enacted and does not bind future generation who have not assented to it.

I wonder, does the first argument mean that every time there is a birth (or a person reaches adulthood) the constitution must be re-ratified? Or we must periodically re-ratify the constitution to ensure that it still enjoys super-majority support? Does the amendment process not account at least in part for the differing desires of future generations?

Also, it seems to me this argument applies to all law. The homocide laws of today invariably were adopted before many if not most of today's voters were of the age to vote. Does that mean that all law makes all future generations slaves? (but then, we are reading from anarchist literature.)

And even if everyone was allowed to vote, does that mean that the constitution is more legitimate? If we are following a principle of non-coercion, even if 80 percent vote for the constitution, the government will still coerce the other 20%. The other 20% are still enslaved.

This Spooner guy from the link and the guy that blogs at Austro-Athenian Empire both seem to think that contracts are the only legitimate way to bind human behavior. Contracts require consent of all people. No contract is capable of coordinating any large number of people if that is the requirement. The transaction cost is through the roof.

Also, who is going to enforce contracts?

3.

The Oregon construction defect litigation bar is a pretty small group of the same players. One of the big players, Jack Levy, groped another female lawyer at party. The story has been big gossip in the construction legal community for some time. Now there's a story about it at the Oregonian's website. (Oregon's biggest paper.) 50 comments so far.

The victim of the story is described as "a litigation associate with another firm, who represents homeowners associations." I can only think of 4 attorney's that meet that description. But I know who filed the complaint. Probably if you know the construction defect bar well enough to know that, you also already know who the victim is.

Funniest line, though it probably shouldn't be: "She said she was moving down the hall during the party when Levy firmly grabbed her rear."

I also like this line: "The bar initially declined the complaint but revived it after the complainant alerted police." Snap! But I wonder if the Bar didn't get it right the first time.

RULE 8.4 MISCONDUCT

(a) It is professional misconduct for a lawyer to:

(1) violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(2) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law;

(4) engage in conduct that is prejudicial to the administration of justice;

(5) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate these Rules or

other law; or

(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

There's no professional rule against groping opposing counsel. Groping is criminal, but it doesn't really reflect on honesty, trustworthiness (eh, maybe), or fitness as a lawyer, except maybe the part where Levy goes to give the lawyer a hug and groped her again. There's no fraud or dishonestly, except maybe in that hug/second groping. Four might apply, as the victim is arguing that this was a ploy to get leverage in the case. However, I understand that Levy was pretty drunk and groped a lot of women at that party, so I doubt it. 5 and 6 don't apply. Looks to me like the bar got it right the first time.

4.

Do you think aesthetic tastes are learned or innate? I've been thinking a lot about the cars I like. I find that I like the styling of luxury cars more than low end cars (although I don't like most Acura's, for some reason).

First I think, maybe it's just because those automakers spend money on the little things that make the car look nice. Then I think, maybe I just like those cars because I've been told by commercials that those are cars of status, and in reality, I don't actually like a BMW 46e body style any more than that of a boxy scion.

Then I think, no, I do like it more because of it is sleek and attractive. Then I think, maybe our preference for certain cars designs relates to our hardwired concept of beauty. Like it reminds us of the female figure or something like that. Then I think, that must be nonsense because there are truck designs I prefer to other trucks, which if anything are masculine, not feminine. Or house designs I like more than other houses, which are asexual.

Then I look at 90s cars and I remember when they were new, and I remember thinking they were kind of cool looking back in the day, but now I think they look more or less horrible. And I have this thought--maybe style is just a fad, and there is no objective way to evaluate it. Or maybe I just have more refined tastes now than then. Or maybe aesthetics are constantly marching forward much like technology, and looking back only shows us how far we've come.

5.

I think the Rand Paul controversy shows two things: 1. The media does not understand even the basics of libertarian thought and 2. it disproves Glenn Reynold's theory that Ron Paul's success came from libertarianism resonating with viewers.

6.

What do you think about cliques within a ward? We should be inclusive and extend the hand of fellowship to everyone, right? But then, we also genuinely like some people more than others. We don't have to pretend like we like all people equally, do we? It sure is a bummer if you're the one that no one likes.

Second Amendment Incorporation

Does the Second Amendment restrict the powers of individual states? Initially, the restrictions on government power in the Bill of Rights only applied to the federal government. For example, the First Amendment begins "Congress shall make no law . . ." indicating that the restrictions in that amendment only apply to the "congress" of the federal government. However, since the adoption of the Fourteenth Amendment, The Supreme Court has gone right by right through the amendments in the Bill of Rights, determining whether or not the right in question should be incorporated against the states. Most of the Bill of Rights, has in fact, been incorporated.

One of the few remaining incorporation questions is whether the Second Amendment should be incorporated against the states. The recent Heller decision, holding that individuals have a right to keep and bear arms for self defense, was taken on appeal from Washington D.C. City ordinance. The Second Amendment clearly applied in that case because D.C. is not chartered by a state, but by the federal government.

If you think that for consistency's sake a court has to incorporate the rights in the Second Amendment, you'd be wrong. While the Ninth Circuit has sort of ruled that the Second Amendment is incorporated, The Second and Seventh Circuits have already rejected incorporation based largely upon precedents, like Presser and Cruikshank. Those cases, however, are not directly on point as there are three methods of incorporation, and those cases deal reject only the first two methods of incorporation. Direct incorporation is rejected because the case Duncan says none of the first eight amendments are binding on the states. Incorporation through the privileges or immunities clause was also rejected in the Slaughterhouse cases.

The last method of incorporation is through the due process clause of the Fourteenth Amendment and is the method by which most of the Bill or Right has been incorporated. This test--a shoot off of substantive due process--asks whether the right is "fundamental, meaning 'necessary to an Anglo-American regime of ordered liberty.' "Nordyke v. King, (9th Cir. 2009) (citing Duncan, 391 U.S. at 149 n.14 (emphasis added).) That's a fuzzy standard, but obviously a good argument for incorporation can be made.

How conservative and liberal justices are likely to answer the Second Amendment incorporation question is ironic. Liberals, who always seems ready to find new rights in the constitution, weren't excited about the robust Second Amendment rights created/reaffirmed in Heller. Now, those same liberals, who favor incorporation and top-down federal regulation, are the jurists most likely to vote against incorporating the Second Amendment.

Conservatives face the reverse problem: they are usually seen as supporting states rights, but will be imposing a restriction on the state. But, to be fair "conservatives" (some of whom are originalist) usually believe in following the constitution's requirements, even when it infringes upon state rights. So the question isn't so much policy, but the constitution. The liberals have this same argument, but because they've already incorporate almost every other right, they'd be acting more inconsistent to oppose this rights.

The real problem for the originalist is that he generally does not believe incorporation is constitutionally mandated. Scalia says that he does not believe the incorporation is proper under the Fourteenth Amendment. Still, he accepts incorporation because the cases were decided long ago, and the doctrine is too settled to overturn it now. Still, in order to incorporate the Second Amendment, Scalia will probably have to rely upon substantive due process, a legal doctrine he has long disparaged.

And what should an originalist who is less deferential to precedent, like Thomas, do? As Justice Scalia says, "Clarence Thomas does not believe in stare decisis, period." "Or even setting aside Thomas's views, suppose you're an originalist that does not believe the incorporation is proper but you are faced with the question of whether to incorporate the Second Amendment. Do you follow the incorporation precedents that you believe are wrong and incorporate a right against the states because it is consistent with what has been done before, and open yourself up to criticism that you are abandoning your principles of interpretation for policy reasons? Or do you not incorporate the Second Amendment and leave one of the few rights in the Bill of Rights unincorporated to be faithful to your originalist understanding of the constitution, even though that understanding will never be law?