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Can you say political question doctrine?

Dan Kahan thinks so, or not. Can’t quite peel back the layers of snarkiness here.

Over at Volokh Conspiracy there’s an interactive poll that lets readers watch a video of the police tasing a D.C. Occupy protestor & then indicate whether the police were acting appropriately. The comments are great demonstration of how people with different ideological predispositions will actually see different things in a situation like this, a recurring phenomenon in the reactions to use of force by police against Occupy protestors. I’m pretty sure the author of the post — Orin Kerr, who’d be a refutation of the phenomenon of ideologically motivated reasoning if he weren’t a mere “N of 1”– designed the post to make readers see that with their own eyes regardless of what they “saw with their own eyes” in the video. Nice.

I previously addressed whether opposition to black swan laws is inherently libertarian, or can it be considered Burkean. Let me take this from a slightly different angle.

Opposition to black swan laws will generally be libertarian and Burkean at the same time. It is Burkean in the sense that you oppose radical change without due deliberations. It is libertarian is the sense that you oppose new (and really more) laws. It has been the tendency of our society to over-legislate following disasters, not under-legislate/repeal existing laws/make us freer.

But, I could imagine a scenario where some crisis strikes, and in the immediate reaction, society senses that the cause–and not the solution–to the problem was government regulation. So, in the heat of the moment, black swan laws are rushed through which roll back the laws which purportedly caused the problem. (Bear with me, I imagine this is not too probably, as governments tend to aggrandize, rather than abdicate their power). In such a case, opposition to the law would indeed be Burkean, but it would not be libertarian, for you are against what is generally a libertarian ideal–rolling back regulation.

So I suppose the principled Burkean adverse to black swan laws would oppose them regardless of whether they are libertarian (rolling back laws) or statist (adding laws).

So, opposing black swans need not be inherently libertarian so long as  the possibility exists that after emergencies, the rash reaction is to reduce the power of the law.

Jonathan Franzen writes about why he likes print books–in short, because they are permanent:

“Maybe nobody will care about printed books 50 years from now, but I do. When I read a book, I’m handling a specific object in a specific time and place. The fact that when I take the book off the shelf it still says the same thing – that’s reassuring,”

“Someone worked really hard to make the language just right, just the way they wanted it. They were so sure of it that they printed it in ink, on paper. A screen always feels like we could delete that, change that, move it around. So for a literature-crazed person like me, it’s just not permanent enough.”

For serious readers, Franzen said, “a sense of permanence has always been part of the experience”. “Everything else in your life is fluid, but here is this text that doesn’t change,” he continued. “Will there still be readers 50 years from now who feel that way? Who have that hunger for something permanent and unalterable? I don’t have a crystal ball. But I do fear that it’s going to be very hard to make the world work if there’s no permanence like that. That kind of radical contingency is not compatible with a system of justice or responsible self-government.”

Bainbridge, better than I could, sums up so well why Jack is Jack:

No, what makes one eligible to be a fancy professor of constitutional law at a fancy law school is how one gets to the right answer. Getting there the obvious way won’t cut it. Instead, you’ve got to have some really braniac way of getting there that no one else would have thought of. Using Icelandic blood feuds to explain class action suits or invoking Wittgenstein to explain the UCC, and so on. Ideally, it should be abstract, erudite, and so off the wall it never would have occurred to anybody who actually works in the field. (BTW, telling us what Rawls or Dworkin would think about your subject is now incredibly passe. Even student notes at bottom tier law schools can do that these days.)

In Balkin’s case, it’s the Thirteenth amendment and “the (in)famous 1830 case of State v. Mann, the North Carolina Supreme Court, in an opinion by Judge Ruffin, held that the owner of a slave had complete authority to use violence against a slave, even to take the slave’s life.” All of which, to him, “suggests an interesting perspective on the First Amendment rights of for-profit corporations.”

To which my immediate reaction was, “WTF?” Followed by, “no, it doesn’t.”

But it’s precisely the sort of thing that passes as top notch legal scholarship these days. Blow that idea up into a 35,000 word article and you too could be a fancy professor of constitutional law at a fancy law school. Except that it never would have occurred to you in the first place. But don’t feel bad. It never would have occurred to me either.