February 2012

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Five questions for legal positivists…

by Tim Kowal on February 22, 2012

I’ve enjoyed our recent discussions on the nature of rights and laws, as they’ve gotten me considering old topics in a new light.  New wine in old skins, or old wine in new skins, something like that.  (Does that metaphor still mean anything? Wineskins—is that still a thing?)  So that I’m not the only one afflicted with these nagging questions, I’m putting these musings to you.  If you’re a legal positivist or play one on tv, try answering some or all of the following questions.  I’d be interested in your thoughts. 

1. If law is simply a positive statement enacted by government, then does the concept of a sovereign make any sense? Wouldn’t a positive statement establishing a sovereign be a prerequisite, and if so, who could possibly make such a statement?

2. If you answered no to the question above, and if our founding documents do indeed establish the people as the sovereign, does that settle the question that the U.S. is definitely not a positivist state? 

3. Positive law bases the legitimacy of law upon the promulgation through procedures (established by law!) and made known to those to whom the law is meant to apply.  This suggests that, under positive law theory, legitimacy is at least loosely based on principles of representation, notice, and consent, among others.  From where are these principles derived?  How does positivism avoid an infinite regression?

4. Under positivism, is the term “basic human rights” a misnomer?  I.e., no rights can possibly be “basic,” since only the institution that promulgates law—and thus creates “rights”—could ever be considered basic; rights, if any there be, are merely derivative.  If not, what does it mean for a right to be “basic” if not to the effect that it precedes or is a precondition of government? 

5a. I asked Burt a variation of the following question, but want to put it to the group: What is an act of the legislature, passed by all due procedures but that blatantly contradicts the First Amendment’s prohibition against laws abridging the freedom of speech such that it’s not even a close call?  For example, a law prohibiting criticism of a sitting President.  Even for a positivist, couldn’t it be said that compliance with the constitution is one of the prerequisites—part of due process itself—to becoming a law? 

5b. Same question, but instead of blatantly contradicting the First Amendment, it was passed only by the House (not the Senate) when the President signed it, thus violating the Constitution’s bicameralism and presentment clause.  Is this a law?  Is it possible to answer this question differently from the one preceding?

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Virginia’s “Foolish” Personhood Law? A look under the hood

by Tom Van Dyke on February 20, 2012

Via LoOG regular Mr. Gregniak: Virginia’s House of Delegates has just passed a fetal personhood law.

Virginia’s Foolish Personhood Law

DOUG MATACONIS · SUNDAY, FEBRUARY 19, 2012 ·

Virginia’s legislature was very busy last week. Not only did they pass a bill that will require every woman seeking an abortion to undergo an unnecessary and invasive medical procedure, but the House of Delegates also passed a bill that purports to define life as beginning at the moment of conception…

Foolish? Let’s see.

First, it’s interesting to see the left sweating slippery slopes for a change. I rather like the law as an obstacle to “progress” in that monkey-wrench sort of way, granting the unborn a status above zero.

Now, I’m not big on the “personhood” tactic, which failed even in über-right Mississippi—it’s possible to oppose abortion without granting a zygote full citizenship. A zygote isn’t a baby, at least not yet, so it’s wack to pretend it is.

On the other hand, this Virginia law explicitly leaves Roe v. Wade unchallenged:

subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court

Roe is in the clear, for now, even if the law goes through. This is not a direct, frontal assault by a state against the federal government. This tactic does not work.

What the law’s effect might actually be is hard for even its critics to say.

[Delegate Bob] Marshall said his bill, modeled after legislation in Missouri, would not affect birth control, miscarriages or abortions but would affect the way that courts define a person. For example, parents could receive damages for the death of a fetus in a wrongful death lawsuit.

Which is sort of like the Laci and Connor Peterson trial, where the Laci’s murderer husband Scott was also found guilty of second degree murder for killing Connor, the fetus, their child.

A fetus with a name, Connor, and accordingly, with a certain “personhood” status.

This law is all about philosophical positioning, it seems to me, and there’s nothing wrong with that. I expect the courts won’t allow the fetus all the way to “personhood,” but these things make it harder for the courts to allow the fetus zero status, like a fingernail.

There are very few pro-choicers who would accept the challenge of arguing this exposed position—the less defensible rhetorical and moral ground, the lower ground—and that the baby in Laci’s womb that Scott Peterson killed was a nothing, no more than a fingernail.

That simply will not ring true, no matter how great your rhetorical skill: Scott Peterson killed something of moral status and significance, a someone of some sort.

We’re all aware of the usual arguments about abortion and a “woman’s body” etc. and that line of argument and its accompanying rhetoric have been well-honed and road-tested, and bear up well if we stick to the script.

But I think there are few who would welcome having to argue that what—who?—Scott Peterson killed in his wife Laci’s womb was a nothing, of no moral significance. Few of us believe that, and this is the purpose of this new Virginia law, if I read their intent correctly, to oblige pro-choicers to argue exactly that, and to be put on the moral and philosophical back foot for a change.

Be it enacted by the General Assembly of Virginia:
1. § 1. The life of each human being begins at conception.

Well, actually, that’s indisputably true. This does not say that every zygote is a full-fledged American citizen.

§ 2. Unborn children have protectable interests in life, health, and well-being.

That’s rather tame on its face. But rather radical in the present controversy. It’s said that he who defines the debate tends to win it. As a formal debate topic, the Virginia legislature has framed it thus:

Proposed: Unborn children have protectable interests in life, health, and well-being.

This explicitly argues the pro-life position, not the anti-abortion one, and from firmer if not higher ground. These country bumpkins in the Commonwealth of Virginia are perhaps not as “foolish” as they look.

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Not all “laws” are laws

by Tim Kowal on February 17, 2012

To those of you who think that all law is mere convention, consider engaging Tim Sandefur’s well-presented defense of the Substantive Due Process doctrine over at Cato Unbound.  Here’s Tim’s response to Larry Rosenthal (my First Amendment professor at Chapman Law):

A self-contradiction is nothing; it is null; it is no more a law than it is a pigeon or a sneeze, and a court is therefore justified in disregarding it, even if passed with full procedural formalities. Yet nothing in the Constitution expressly forbids self-contradictory statutes. This prohibition is implicit–embedded in the logic of law itself. As the framers were aware, Francis Bacon made the same point when explaining that a legislature cannot create an unrepealable law (perpetua lex est nullam legem). Nothing in the Constitution expressly forbids unrepealable statutes. Yet such things are prohibited by what Bacon called their “impertinency,” or by what Hamilton called “the nature and reason of the thing.” There are limits on legislative authority imposed by the logic of law itself. That’s why even Blackstone, who believed that government possessed “supreme, irresistible, absolute authority” still admitted it could not do something that is “naturally impossible.” To make an arbitrary, ipse dixit, unauthorized use of force into a “law” is naturally impossible.

If one concedes this much, then one must admit that mere promulgation is not sufficient to make something a “law.” Instead, the legal status of a promulgated rule must be determined at least in part by its content. That is, by its substance: we must ask what a law is, and determine whether something containing the substantive provisions in question meets that definition. That just is substantive due process of law.

A constitution does not tell us what a right is, what a law is, or how to reason.  A constitution will be utterly meaningless to a people who either cannot or will not admit these basic notions as inhering in its very idea. 

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Peter Van Dyck: “Conservative” Artist?

by Tom Van Dyke on February 13, 2012

Peter Van Dyck: Beth in White

To me, these days, any artist whose work has a resemblance to its actual real-life subject is “conservative,” so too any artist whose sense of beauty corresponds to what is considered beautiful in real life regardless of context.

Above, Beth in White [2006]. Below, Corner of Ripka and Wilde Streets [2010].

Peter Van Dyck: Corner of Ripka and Wilde Streets

Peter’s website is featuring his more recent work such as the latter, and the gentle observer notes a certain evolution in style, toward a less literal and more impressionistic and personal use of line and color.

I relate to PVD’s work not only on the visceral level, that I feel present at the scene, but it’s more than that. His newer work has added impact, and for that first glimpse of the scene, I’m an artist—I’m Peter, the artist—myself. He has lent me his discerning and loving eye, so that I may see what he sees, and feel it as he does.

What a gift, more a sharing really, between artist and audience.

As a matter of disclosure, Peter Van Dyck is related to me by marriage: my sister is married to his father. The names are coincidence, or kismet, depending on your view of these things.

I do hope that that provincial fact, or my tarnishing him with the “conservative” brush, does him or his work no fatal disservice. I was shown his earliest work over a decade ago, and even then it made my heart rise—life seemed just a little bit richer for having seen his work.

I’d say if there’s a conservative approach to artistry, it’s this—to show us what we strive to see but cannot, the beauty we know is there but lack the clarity of vision to perceive.

The kind artist, the lover of life and the lover of man, lends us the startlingly clear blink of his eye now and then, although it takes him hours upon hours [and a lifetime of preparation] to get it down onto his canvas.

I have stood on the corner of Ripka & Wilde and wanted to be nowhere else in creation at that very moment; I have had Beth take my breath away.

For that, to Peter Van Dyck, I am grateful, and shall be all my life.

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Pondering Positive Rights

by Tim Kowal on February 10, 2012

In light of some of the responses to the League’s constitutional convention on the main page, I’ve been doing some thinking on the subject of so-called positive rights and want to take the pulse of readers here.  To those of you who believe there is or ought to be a constitutional right to health care, do you believe this right exists outside the context of the state? That is, if we suddenly found ourselves stranded on a desert island with no government or formal laws, do I nonetheless have a right to receive medical services from you similar to your right against my stealing your possessions or causing you physical harm? What if you need my shirt to strain your drinking water–part of your "rights" to basic food, water, and health care? Can negative and positive rights co-exist?

You can see where I’m going with this: some kind of things are appropriately called basic, or constitutional, rights, and others are something else. But I genuinely want to understand the case for putting positive rights in a constitution, and how they might interact with or impact negative rights.

[In light of some of the initial comments, I added some additional thoughts and restarted the discussion at the main page.]

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Rejecting Rejection

by Tom Van Dyke on February 9, 2012

reject reject

HT: John Fea.

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Our Unlovable Constitution

by Tim Kowal on February 7, 2012

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right to food.”  The study suggests that the U.S., “rooted in a libertarian constitutional tradition that is inherently antithetical to the notion of positive rights,” is in danger of becoming a “legal backwater.” 

Supreme Court Justice Ruth Bader Ginsburg seems to agree.  According to a recent interview, Justice Ginsburg said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said.  She recommends the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights. (Via NY Times.)  Law and Versteeg similarly find that “the average constitution has increasingly grown to resemble the International Covenant on Civil and Political Rights and the European Convention on Human Rights, as well as the African Charter on Human and Peoples’ Rights and the Charter of Civil Society for the Caribbean Community.” 

The other “generic building blocks” Law and Versteeg conclude are missing from the U.S. Constitution include “Right to work,” “Right to unionize and/or strike,” “Physical needs rights,” “Right to education,” and “Limits on property rights” (e.g., “property may be limited by its social function”).  Other popular “rights” include “Citizen duties,” “Right to a healthy environment,” “Other worker’s rights,” and “Artistic freedom.”

Two observations:

First, it is not clear that Americans ought to care whether other countries use the U.S. Constitution as a template.  I can think of just two possible arguments why they should:  (1) conformity is somehow good for its on sake; or (2) other countries’ constitutions are somehow substantively better than ours, and thus we should bring ours up to snuff.  The study does not raise either argument, but it is hard assume the authors have no opinion on the matter and yet proceeded to spill 80 pages of ink painstakingly studying the issue.  This is the way modern social science is done, I understand:  treat all facts as created equal and avoid offering any overt “value judgments.”  The authors’ silence on the values question is so deafening, though, that their refusal to simply lay them on the table is a perhaps unexpected distraction. 

Second, neither the study nor Justice Ginsburg address the role the Court has played in modifying the constitution and preventing formal amendments.  The Constitution used to be formally amended more frequently than it is today.  It is counter-intuitive that it is now seldom amended even as people tend to understand less and less of its “original” meaning.  As I expressed in a recent discussion with James Hanley, by now, the meaning of the Constitution must seem very distant to most Americans.  Most discussions about the Constitution do not even quote its text.  Originalism makes the Constitution distant because it means people need a history degree before they can understand it.  Living constitutionalism makes it distant because it means people need a law degree to understand it.

If Americans are taught that they can’t understand what their Constitution says—or worse, that it has no fixed meaning at all—then they will never agitate for change.  Constitutional participation will never be more than fighting over who gets to nominate and approve Supreme Court justices—the delegates to what Woodrow Wilson called our “constitutional convention in continuous session.”  A recent poll (which I can’t seem to find now) reported the oft-repeated observation that of all American political institutions, the courts are by far the most trusted.  But the poll went on to observe that most Americans believe that, when courts find rights in the Constitution, the rights are really in there and not just spun out of judicial philosophy.  If Americans are astray in their constitutional understanding, they’ve been led there.  

Despite this disconnect between modern Americans and their Constitution, we’ve little hope of amending it.  Even if the breathtaking amount of political will could be mustered, it can be bested or undone by a crack legal team and a carefully selected litigation strategy, or by a willful executive armed with a good crisis to forge a “constitutional moment” that changes our constitutional presumptions without any formal writing at all. 

Americans thus have little reason to feel they can understand the constitution, and less reason to feel they can change it. 

It seems unfair, then, for Justice Ginsburg to criticize the Constitution.  That document has proven fertile ground for her and her living constitutionalist colleagues.  And its ossification owes in no small part to legal and judicial philosophies to which she subscribes. 

Not that this is all the Court’s fault.  The great sin of slavery brought us Civil War, and with it a remade Constitution.  This, even before the progressive and liberal legal revolutions of the 20th century, made it almost impossible to know exactly what would be required by that new constitution, rededicated to the proposition that all men are created equal.  But it is still overwhelmingly true that Americans swear fealty to the original principles of the Declaration and the Constitution—that the basic unit of our political system is the individual and not the state; that rights are something in us and not given to us; that government is best which governs least.  Those American principles seem conspicuously absent from the constitutions in Law and Versteeg’s study.  If that fact has any effect at all on Americans, it will likely only cause them to redouble their commitment.

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If you’re in Orange County on Thursday…

by Tim Kowal on February 1, 2012

…Come hear Ed Whelan of NRO’s Bench Memos speak on the judicial nomination and confirmation process.  Hosted by the Orange County Federalist Society. 

Details here.

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