Posted 2 years, 10 months ago in the early afternoon by abogado
February already? I’m with Oso on this time thing. It’s just moving too fast. He keeps talking about petitioning the Universe for more of it, but I don’t think that’s ever really going to happen. Maybe I should be proactive and get something going on PetitionOnline.com. I’ve been getting my calendar together in the attempt to actually be organized for once in my life. Every time I look at May and June I start feeling aged: 3 graduations and 1 wedding in the span of 4 weeks. There is nothing like a series of life’s little bookmarks to make you realize how quickly the years go by. One of these occasions is my sister’s high school graduation. My sister was born one week before my eighth birthday, and it has always been her youth that has kept me attached to my own. Now, with college applications, high school graduations and 18th birthdays around the corner I feel as though I’m the one going through life’s rite of passage.
I am half way to a milestone of my own. The second year of law school is infinitely better than the first. The truth is nobody, not even a lawyer, cares about property, torts and contracts — the standard 1st year curriculum. But taking a class on the legislative process with a man like Professor/Father Drinan is the reason I came to law school in the first place. Basically, he was personally ordered by the pope not to run for Congress for a fifth term because his positions were embarrassing to the church. Anyone who can agitate the church to the point of forcing the pope to issue a global proclamation has my eternal respect — and to do it from the inside is even more impressive. There are about a dozen people in the class, which he conducts in a modified version of the traditional Socratic method interspersed with fascinating, quasi-related stories about his life experiences – which he seems to have had more of than the vast majority of people on earth or off it.
So on the first day of class we’re discussing one of my favorite topics – statutory interpretation – and Father Drinan ambles towards me and says,
“Mr. Silberman, since you are first here on the seating chart,” as I nod and quickly sit up in my chair wondering how the guy in the back row could be first on the seating chart, “What do you think of the New York Supreme Court’s decision in Braschi?”
The case is pretty straightforward: two homosexual men had been living together for years in a rent-controlled apartment in NYC, the lease was in Brashi’s companion’s name who passed away, after which the landlord tried to evict the plaintiff. New York City regulations, however, stated that surviving “family” could take over the lease of a rent controlled apartment if the lease holder passed away. So the question: Does Braschi’s relationship fall under the definition of “family.” There are all sorts of legitimate ways to address the question: look up “family” in the dictionary; attempt to discern the intent of the legislature in passing the regulation and decide whether they intended it apply to such situations; look at the modern societal conception of “family” in New York City in 1989 and ask whether this situation comports with such a conception etc. The answer I heard myself defending surprised me even as I said it:
“Well, I think the judge was wrong to force a meaning of “family” on the statute that was clearly not meant by the legislature when they passed it. The courts should not overstep their boundaries of interpretation by imposing their social mores on the rest of society.”
What did I just say? Where the hell did that come from, the Conservative Manual of Judicial Interpretation? Have I been reading too many Scalia dissents? Did I even mean it? As Father Drinan prodded me with further questions I back-tracked and qualified my original position by arguing not that the judge was necessarily wrong to interpret “family” in that way, but that such an interpretation could actually hurt the cause by facilitating a backlash among the legislature that would set back gay rights. But this too was clearly disingenuous. The rest of the day, as I thought about my response it occurred to me why I had been so quick to resort to the modern conservative notions of judicial roles and statutory interpretation: it was easy. It is very easy, in any situation, and especially when on the spot, to say: “well, that’s not the role of the court, “family” means what it means and it don’t mean that.” It is much more difficult to argue the more nuanced alternative: that definitions and societal conceptions are constantly evolving and that what one group of people meant by something a long time ago is not only indeterminate but hardly even worthwhile as anything more than guidance. That two gay men or women share the same bonds of love and commitment as any other people and that they are equally as deserving of the protection of our laws regardless of whether a particular legislature thought to include them in their definition of a “family.” And that the purposes that are behind allowing a widow to take over the lease of the home she has lived in for the last 20 years apply with equal force to the survivor of a relationship that was never officially recognized by society, but that consisted of every aspect of our definition of family.
Shortly after the realization that my response was one of intellectual convenience and weakness under pressure, I decided to look up the actual meaning of “family”. To add to my lack of intellectual legal sophistication, I found that according to dictionary.com even the aforementioned Justice Scalia could not have argued with the ruling of the prescient New York Supreme Court:
fam•i•ly ( P ) Pronunciation Key (fm-l, fml) n. pl. fam•i•lies:
1)
a. A fundamental social group in society typically consisting of one or two parents and their children.
b. Two or more people who share goals and values, have long-term commitments to one another, and reside usually in the same dwelling place.
2) All the members of a household under one roof.
It’s funny … on capitol hill it’s called “political ideology,” but in court it’s called “judicial philosophy.” Same difference to me.
I’m sorry for being so skeptical, but as I see it, you go to law school for three years, you learn your p’s and q’s, you learn some nifty rhetorical tricks, and you learn some latin. And there’s your ivory tower justification to fight for the same subjective values you had going into the game.
Yes, the p’s and q’s of logic are good to know. And yes, they help you better understand the other side of the debate as well as what the real root argument boils down to. But that’s it. After that, you fight for what you want the world to look like.
So I can say that Alito is a qualified judge, but that doesn’t mean I’m ok with him on the bench because his values are different from my own and, for me, that’s really what it all comes down to.
On a more serious note, my friend, there is no such thing as “Statutory Interpretation:” a 17-year-old is a 17-year-old and you should be staying away from them.
Could it possibly affect your grade if I were to say that homeboy looks like he should be staying away from the 17-year-olds himself?
Hmm, I’m not sure if thats responding to my post or just an observation, but I don’t think many people change their values coming out of law school. Likewise, it would be a shame if they did. But I think you’re looking at the wrong perspective — a lawyer has to be an effective advocate for his client, values aside. Thus, in order to argue a case in front of Posner you must address the practical considerations of a given outcome; Scalia, the textualist arguments, or historical values that produced a text, etc. Lawyers don’t make the decisions, and as far as learning how to argue your own beliefs, well that only matters in bars and on blogs, but as far a legal carreer goes, they matter not. I think I could do a decent job of arguing the exact opposite of nearly every opinion that I hold (which was part of the point of the post), and that is a very useful skill. That doesn’t mean that I hold my beliefs any less strongly.
Also, as far as subjective values being the only means of deciding cases, 90+% of every dispute is probably decided nearly objectively. It’s just that the other cases contain the really contentious questions of society - cases that involve interpretation of words that are not clear, phrases that have no independent meaning etc. Does the right to Liberty mean that I have a “right” to access to contraception? I sure hope so, but I can’t say objectively yes. It is the argument of the conservative movement that these questions actually DO have objective answers - i.e. “show me where it says you have a “right to condoms” in the Constitution.” I, like you apparently, am willing to admit that there are not objective answers and that subjectivity must come in to play. They call that activism, I call what they do just as “activist”.
Yes, exactly.
I totally saw this one coming.
I’ll not got to in depth into this as alot of the arguments pro and con regarding ‘judicial interpretation/review’ and whether or not the Constitution is a ‘living document’ or not I find to be wholly ludicrous. To assume it’s not is simply not facing reality. The document could not be interpreted in any other way unless one is living in a bizarro universe. How could it not be intended to evolve with the times based on how the country and it’s morals had evolved?? If it weren’t allowed to flow and ebb with time and change, it likely would have collapsed or at bare minimum would have been amended hundreds of times.
Well you see, this is where you and I differ Abogado, I would have answered his question completely differently.
I would have said, you see Padre, you are approaching this whole thing all wrong, the question isn’t: Does Braschi’s relationship fall under the definition of “family.” The question is: how could those New York liberals actually think that rent control works? That was the bigger crime in this case, and to remedy it, you should make everybody pay - whether gay or not - fair market value for their rent.
After all Padre, you have to remember that the Constitution is a ‘living document’, “How could it not be intended to evolve with the times based on how the country and it’s morals had evolved??” And it’s a well known fact that ever since Milton Friedman and George Stigler’s classic argument against rent controls, Roofs or Ceilings? The Current Housing Problem, and certainly by the late 80’s, no self respecting economist, liberal or conservative, believed in rent controls. So based on these facts, I conclude that abolishing the rent controls is the only possible, and fairest to everybody, solution.
Of course I’m kidding…sorta.
Very creative HP; turn the tables on the old man. You surely would have been the object of his ire after that move, but quite clever. I do seem to recall from my basic economics undergrad class that the efficacy of things like price controls depends on the elasticity of the market. As someone who benefits from such controls (to the point where I probably couldn’t live in the city without them) I think it would be a shame to see them go. Then again, if someone would be willing to pay more to live in my apartment why shouldn’t they right? I mean, the poors don’t need to live in the city anyway.
I totally missed the part where they lived in a rent-controlled apartment. HP’s pretty clever - get rid of the problem before it starts. And I agree - I’m tired of seeing all these poor people in their low-income housing when I go downtown. Who says that blue collar workers should be allowed to live near white collar workers? Send them out to the desert god damn it.
Rent controls hurt the poor, they don’t help them.
If you look up the standard arguments against rent control, and to some degree in, Roofs or Ceilings? The Current Housing Problem by the two Nobel laureates Milton Friedman and George Stigler, you will see that it all breaks down to efficient allocation of resources. If you don’t use prices to allocate scarce resources (in this case affordable rental units), you get inefficient means of allocation - which in the end punishes the poor the most. You get people who don’t vacate when they normally would have (why give up a cheap apt in an expensive part of town?), you get bribery of officials(come on, grant me this rent control), you get political favors, you get black markets etc….and since the rich have all of these at their disposal more than the poor, the rich always end up getting more of that rent controlled property anyway, and the few poor that benefit from it, come at the expense of the overwhelming number of poor people that were priced out because of the inefficiency of allocation.
Rationing goods and services based on price instead of some government controlled rent control is the second most settled issue in economics; rent controls are bad not just for market efficiency, but especially for the poor. And what makes matters worse for the old Padre, is every text book argument that teaches against rent control uses primarily New York as the example.
The Concise Encyclopedia of Economics writes:
Read the full article here to see how rent controls are bad for everyone, including the poor.
So please my ‘living constitution’ friends, will you join hands with me in fighting these intolerant reactionary dogmatic religious liberals who continue to believe in outdated economic policies like rent controls and protectionism? Lets spread across the country and nock down all of these clearly harmful and discriminatory laws.
Since most people probably skipped over that entire comment because of the length and repetition, I figured I’d highlight the actual substance. Anyway, like I said, I completely agree - these poor folk living it up in the gentrified city, they don’t know what’s good for them. Send ‘em to the desert. There’s no rent control here in La Jolla which keeps that unsightly working class out of sight, out of mind, just how I like it.
This post isn’t about rent controls; I made my response very broad and general because whether or not rent controls are good is tangential to the point at hand. For example, in my response, I didn’t even address the supply issue, another aspect of rent control that primarily harms the poor. Suffice it to say that economists are universally against rent control, and would all argue that it harms the poor, not helps them, if you want to know the gist of why, read the article, it spells it out at great length here.
The only point that is germane to my point is that it is a fact that the economics community, meaning those whose profession it is to study these issues, are in universal agreement here that rent controls are bad for everyone. So based on that, and of course, the living constitution argument, I call for a universal, constitutional of course, repeal of all rent control laws, and while were at it, protectionist laws across the country.
This whole discussion reminds me of what Scalia said of the many shortcomings of the living constitution judicial philosophy:
Scalia’s full speech can be found here. I strongly recommend anybody who is interested in this topic read the whole thing for themselves, if for no other reason than to see what motivates those on the opposing side.
I guess that my point, dear sir close to my heart and house, is that it means very little to me to read that “all economists are in agreement about so and so …” (which seems to be your second-most-favorite saying after “where da hizzies at”) compared to hearing actual arguments in favor or against.
I click your links and - you’re right - they do make some arguments, such as:
That makes some sense to me. (BTW, when you gonna fix your deck up bro?) But they sure don’t try to win readers over by pointing out both the pros and cons like Wikipedia does:
And then there’s your argument:
Both sides make some good points. But I would rather have an integrated neighborhood and deal with the bureaucracy of administering rent control (it should be made more transparent via the web), than seeing separate neighborhoods based absolutely on class, not to mention the transportation nightmare that causes.
Finally, I don’t think that either Abo or I would disagree with the fact that Scalia’s philosophy is neater and easier to defend. Furthermore, there is an inherent contradiction in being a “progressive relativist.” But that’s what being a liberal is all about, and it’s why we get the ladies. Don’t worry, I’m still gonna write you a manual.
Wikipedia, as you know, is a community based encyclopedia, meaning virtually anybody can add or modify it (which is at the heart of why it has been receiving such criticism lately, see here). So I wouldn’t put much stock in what they say, certainly not treat them as equally reliable as an economics encyclopedia, where the contents is strongly monitored.
If your goal is, as you wrote above, I would rather have an integrated neighborhood… than seeing separate neighborhoods based absolutely on class…, than there are much more efficient ways of accomplishing that than government mandated rent controls. Just to give one example, the government could give poor people a direct housing voucher, a voucher that makes up the cost from what they could pay and what the current fair market value of the property is. That would accompish the very same goal, without all of the ugliness that comes with rent controls.
Finally, my problem with the ‘living constitution’ judicial philosophy is not that it is sloppier, or much harder to decide individual issues, it is that it puts too much power in judges, judges who are really no different than average citizens in deciding moral issues.
To quote Scalia’s talk on the same subject one more gain:
I really don’t give a damn what you think about what source. I just want to know your specific reasons for your positions. And as happens every single frickin time, it turns out we don’t really disagree with each other so much. Issuing vouchers compared to rent control is just fine with me, but I don’t see how it will cure your worries of bureaucracy, benefits for the well-connected, and unkempt buildings.
I also wholeheartedly agree that decision-making should be as democratic a process as possible. The last two words are italicized.
Now my turn to leave a link for you. It’s only 11 paragraphs.
Which is why I said from the beginning, this post is not about whether rent controls are bad or not, it is about what our evolving standards now dictate as opposed to when the laws were created. We have moved passed the time when rent controls were considered a viable option for solving societies problems, and have now arrived at much more efficient solutions. So again, based on that, and with the support of the living constitution, I say we go around ruling every instance of them (and protectionism, another clearly settled evil) unconstitutional.
We can disagree on the limits of democracy to some degree, but I think we can all agree that atleast on issues regarding morality, we should leave it up to the voters instead of to some centered power of judges, who are really nothing but voters themselves. Right, my moral relativistic friends?
As much as possible yes, which is why I think it’s great that the supreme court sided with the voters of the state of Oregon rather than Alberto Gonzales on the patients’ right to die. It’s also why I’d like to see decisions like the New London eminent domain case put to the voters rather than the judges. But as anyone whose ever worked on a large group project knows, putting absolutely everything to a vote is a terribly inefficient process.
Anyway, what all this code language comes down to is that you want abortion rights to be put to a vote. I say go for it, I think you’d be surprised.
So you didn’t like that NY Times op-ed huh?
Not just abortion with Roe vs. Wade, but gay marriage and all other moral issues. I think these issues should all be left to voters, not judges.
As far as the article goes, I didn’t respond because there wasn’t much to disagree with (or much pertaining to this discussion, for that matter), I am on record stating that:
Great to hear you are for overturning Roe vs. Wade though, much credit for that. Now if we can just get other moral relativistic liberals to arrive at the same conclusion….
Good god, not even I can manipulate my own words so forcefully. What I am saying is that I think far fewer of your red-necked fundamentalist compatriots (ie. the confederacy) are willing to outlaw first semester abortions than you assume.
Dude, you said you were going out with your friends like three hours ago.
I know, I’m still at work fucking with this program, grrrr..been here since 2pm!!! It’s times like this when I wish I was in a union. That way I can be a lazy ass and complain to the union when I get in trouble. Damn corporate America, working us too hard!!!
Anyway, I am out, so I’ll let you slide on this last comment. Besos.
I haven’t read any of your back-and-forth here. I will after my soccer game. I just watned to ask HP why he supports people being forcefully removed from their homes for economic “efficiency” when it’s done “naturally” by the “market” but not when it’s done by the government for the same reason via eminent domain (i.e. Kelo). Both have the exact same motivations and cause harm and benefit to the same groups of people correspondingly.
Okay, I’m up to speed. HP, I really can’t believe that you mean this:
Here we are, back to a rights discussion. What is a right (as in the Bill of Rights as in the Constitution) if it is only protected when the majority wants it to be? Rights, by definition, must be protected when the are not popular. That is a simple and fundamental concept that you seem to compeletely miss, and I’m honestly a little surprised.
You are calling for a return to the Lochner v. New York Era. While it is common for conservatives to compare the substantive due process arguments of individual rights to those of implementing specific economic policies in to the constitution there is a clear demarcation line between those cases and the modern ones. One that has been recognized for decades. So while you are making a valid analogy, it is a hollow one. See Justice Holmes’ dissent in Lochner lest you think I am talking out of my ass:
Point being, even if you convinced me that rent controls were inefficacious I would not agree with your tounge-in-cheek suggestion that we declare them unconstitutional, nor do I argue that the repeal of such laws would be unconstitutional. They have been passed democratically by referendum or the legislature so somebody must think that they work. Maybe they are valuing different things than you and your economists. Maybe they are willing to sacrifice some “efficiency” - a dubious word indeed - for some “justice” - probably equally dubious, but certainly no less valid. Maybe they are wrong, maybe they are harming those they attempt to help - such is the danger of paternalistic motives. But throwing people under the wheels of some non-existent notion of efficiency and wiping your hands of any responsibility strikes me as far more dangerous.
You almost captured completely why I want moral issues decided by voters instead of judges when you said this:
I agree that rights should be protected when they are not popular, the problem is that with moral issues, what is a right and what is not becomes the issue, not the right itself.
For example, you write eloquently about how we should protect the rights of the minority against the will of the majority, but if the Supreme Court struck down Roe vs. Wade tomorrow, a ruling that would specifically protect the rights of the minority, you would call that judicial activism. And this even though striking down Roe vs. Wade will not prohibit one abortion; all it would do is leave it to the states to decide.
It is precisely because moral rulings can’t be decided without involving politics that they should be left up to the political process. The philosophical question, “Is the human being inside that woman’s body considered a person” is a philosophical question that you as a judge have no more moral insight into than the mechanic down the street. Yet it is precisely how you answer that question that will dictate how you rule on a whole host of issues.
So like you, I believe that giving judges this power over moral issues is “throwing people under the wheels of some non-existent notion of efficiency and wiping your hands of any responsibility strikes me as far more dangerous”.
For the record, while I am strongly against abortion, I would much rather live in a world where abortion is just as legal as it is today but was decided by my fellow citizens around me, than in a world where abortion is a bit more restricted but was decided by 9 judges who don’t know more about the philosophical issue than the average joe on the street.
HP,
The reason I took your suggestion about rent control so seriously is because, yes, I do “agree” with you (I realize you’re being sarcastic) about the need to revisit and interpret the constitution based on current socio-political realities. We’re really getting into a religious debate here, but any socially constructed concept like “family” or “privacy” or “freedom of speech” is bound to change over time as society itself changes.
I haven’t read it yet, but Justice Breyer supposedly lays out the argument clearly in Active Liberty.
Hey, Thanks!!! I hadn’t realized that there was a book written for the general public on this topic. I already have Scalia’s A Matter of Interpretation: Federal Courts and the Law on my wish list, and will surely add Breyer’s book as well.
On a side note, if you remember, Justices Scalia and Breyer were the ones who also presented opposing views on how international court rulings should affect Supreme Court rulings. They held a public debate for others to see, for more on that debate, check out this article.
Not that I hold much stock in Milton Friedman but I don’t believe that in any of his papers does he argue that rent controls hurt the poor. “no good economist” eh? Go ahead send me your “economics” and this economist will look over your data.
Hey Elenamary,
Long time no talk. I was starting to miss you around here.
In case you missed it, here is the paper by Milton Friedman and George Stigler and here is the paper by the Concise Encyclopedia of Economics that does a decent job of summarizing the arguments against rent control.
This is an exceedingly telling paragraph. First is this argument: Don’t fix inequalities through rent control, fix them at the source. Do you agree with this? After all, inequalities are a “product” of the “market”. I 100% agree with their argument here and as a reminder, I was never advocating rent control (except maybe as it applied to my own apartment
). Second, the underlying assumption of the first sentence is that the “free market” precedes law - this is 100% false; we could more legitimately say that the laws (rather than the market) created the inequalities — and thus that they should do something to remedy them. But I do agree with the more general proposition that things like rent control, welfare, affirmative action etc. are far less preferable than addressing the root causes of these problems.
I look at constitutional interpretaion pretty simply. Original intent means interpreting the constitution’s meaning through the eyes of the population that wrote it and for whom it was intended. male, white, property owners. Is that the population of America in the 21st century?This is why I find the seating of Alioto, Roberts,Scalia, Thomas, very unsettling. Also so many Supreme Court Justics being Catholic tells me the court will probably be comfortable with hierarchical power. Some authority telling others what to believe and how to behave. It may be appropropriate for spiritual guidance to many, but that can cross over to putting morality perogatives into societal law thus dictating personal perogatives. That to me is against the very principals of a free society. As other commentors have said in so many words, if we can’t evolve, adapt, grow and change, we will atrophy and die. Original intent and hierarchy together do not make for a viable free future..