Eugene Volokh on Cordoba House

I missed this when it came out. Eugene joins a disappointingly small group of conservatarians in upholding basic Constitutional principles against bigotry.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

21 thoughts on “Eugene Volokh on Cordoba House”

  1. I don't mean to be snarky, but my pocket copy of the Constitution lacks any clauses relating to bigotry. Could you cite them for me?

    Now, there are some clauses barring classes of actions bigots would generally like to engage in, even bigots who like to think of themselves as benign and progressive. But the bigotry itself? Pretty sure it's covered by the 1st amendment…

  2. Brett,

    I think you are being snarky. Obviously, there doesn't need to be a "bigotry clause" in the constitution in order for there to be a need to defend it against bigotry.

    Attacks on the rights of a free people in general, and the Constitution in particular, come in all sorts of flavors. One can argue as to whether or not they're all facets of the same thing, but bigotry, hatred, fear, and for that matter most of the 7 deadly sins can be motivations to attack freedom. (Gluttony, unless one gets metaphorical, seems a stretch, but I'm sure it could happen.)

    Then again, play-acting dense in public is covered by the First as well.

  3. Well, yes, it actually was a bit snarky, but there's a point to my snark. The relevant constitutional clauses and amendments don't bar bigotry, as I said, they bar certain classes of actions which might be MOTIVATED by bigotry. But which are banned regardless of whether the person favoring them is, or will admit to being, bigoted.

    Equal treatment under the law is not a bar to discriminatory policies only if they are motivated by bigotry. We're all entitled to equality before the law even in the face of high minded discrimination by people who like to think of themselves as nice.

  4. You're reading it wrong, Brett, so your snark falls flat. It's not a matter of upholding constitutional principles against bigotry. It's upholding constitutional principles against bigotry — a choice between which of the two one more highly values upholding. Nobody is claiming there is an explicit anti-bigotry clause in the US constitution. The point is that, for so many of your charming friends, when it comes time to choose between the constitution and screaming themselves hoarse at ragheads*, they'll go for the two-minute hate every time.

    * Or fags, n*ggers, pope-kissers, Jews or whomever those who manipulate them find it useful, at any given time, for them to hate.

  5. You know, Brett, it's OK if you just type, "Liberals are the REAL racists, am I right, guys?" It saves everyone time: You, by not having to look for tendentious arguments to couch your feelings in, and everyone else, by not being required to take you seriously. It's win/win!

  6. "It’s upholding constitutional principles against bigotry"

    That's the point here: The Constitution should be upheld, PERIOD. Whether it's against bigotry, or well motivated schemes, just uphold the damn Constitution, PERIOD.

    And not the 'principles', the actual Constitution. This business of abstracting principles from the text, and applying them instead of the text, is just another 'living constitutionalist' dodge to avoid enforcing the constitution we've actually got.

    I wouldn't say liberals are "the" real racists, but judging by the race conscious policies you routinely advocate, you're at least among them.

  7. I am a poor helpless victim whose Constitutional rights are being abridged. Like Dr. Laura Schlesinger, I have a First Amendment right to a lucrative, nationally syndicated radio talk show. Just as her rights have been taken away from her, my rights have been denied. As I sit here sniveling, I could use all the sympathy I can get. The bigots have done this to me.

  8. Well, no, Brett. There are times when Constitutional principles shouldn't be upheld: the Constitutional Principle that slavery's a fine institution lasted far too long. So it is worth examining Constitutional principles to see what values they express and protect. The ones that promote pluralism, and so protect against bigotry, are important not just because they're Constitutional, but because of what they do for the society our Constitution shapes.

  9. Brett, you have an unquestionable, Constitutional right to own revolvers(1). It's just that, well, maybe it's not a good idea. It could be a "stab in the heart" for the families of murder victims. You don't HAVE to be exercising your rights all the time; you still have them(2). Right?

    –TP

    (1) But there I go "interpreting" again. It's only the "principles", not the text, of the 2nd Amendment that apply to revolvers.

    (2) Naturally, you will object that licensing or registration are intolerable abridgements of your right to keep and bear arms. So I imagine that you also oppose zoning and building codes for churches and mosques.

  10. Brett,

    The text of the Constitution resolves very little. Let me ask you a question of Constitutional interpretation. Who should preside over the (hypothetical) impeachment trial of the Vice President of the United States? Look at Art I, Section II, clauses 4 and 6.

  11. Brett, how did you turn this post about the small number of conservatives actually standing up for the constitution, by defending the right to put a Mosque near the WTC site, into an argument about liberal discrimination and "race conscious" policies?

    And just to note, the originalist idea that seems to eschew court precedent and deliberative interpretation in favor of literal and non-deliberative interpretation strikes me as profoundly anti-constitutional. But maybe that's just me.

  12. And not the ‘principles’, the actual Constitution. This business of abstracting principles from the text, and applying them instead of the text, is just another ‘living constitutionalist’ dodge to avoid enforcing the constitution we’ve actually got.

    And since words phrases like "cruel and unusual" and "due process" and "infringed" and "arms" and "high crimes and misdemeanors" all have completely objective, non-partisan definitions that are agreed upon by 100% of Americans, then this is easy!

  13. @Phil,

    since words … all have completely objective, non-partisan definitions that are agreed upon by 100% of Americans, then this is easy!

    That's a feature, not a bug. When the Proper Bellmorean Judge comes across one of those mystifying phrases like "due process" or "equal protection", the only correct response is to throw his hands in the air, admit that these are delphic utterances whose meaning no man can fathom, shrug, and take no action. Because if he did, he might unknowingly be applying a constitutional principle rather than raw unprocessed Constitution. And that would be bad.

    And what are the mystery phrases in question? Oh, essentially the entirety of the constitution. Except for the Second Amendment. (The latter part only, of course. That first part is so mysterious!)

  14. "Well, no, Brett. There are times when Constitutional principles shouldn’t be upheld:"

    You're making that complaint to the wrong person, Warren. I've already stated, I don't think Constitutional "principles" should be upheld. I think the Constitution itself should be upheld. Screw the supposed "principles".

    The interstate commerce clause says that Congress shall have power to regulate commerce "with foreign Nations, and among the several States, and with the Indian Tribes". I see a (limited) grant of power there. But what's the "principle"?

    The Declaration of Independence had principles. The Constitution is law, not polemic.

    "Brett, you have an unquestionable, Constitutional right to own revolvers(1). It’s just that, well, maybe it’s not a good idea. It could be a “stab in the heart” for the families of murder victims. You don’t HAVE to be exercising your rights all the time; you still have them(2). Right?"

    Right, Tony. I don't give a bucket of warm spit what you think of my rights, so long as you don't violate them. In case you missed it, I've already said, they own the land, they can build their mosque, and nobody else has any say in the matter, no matter how they're offended, no matter that the mosque's funders might view it as an expression of triumph over the wussy dihmmis. The 1st amendment and property rights trumph hurt feelings every time.

    "Brett, how did you turn this post about the small number of conservatives actually standing up for the constitution, by defending the right to put a Mosque near the WTC site, into an argument about liberal discrimination and “race conscious” policies?"

    Now, THAT is a fair question.

    I view my purpose here as pointing out the loony unstated assumptions, puncturing the comfortable shared consensus. In this case, the assumption is that the Constitution has principles, and that said principles are supposed to be upheld against particular motivations.

    No, the Constitution does not have "principles", it's a work of law, not philosophy. And if it had principles, we shouldn't be upholding them, except insofar as those principles are actually expressed as commands in the text. Extracting supposed "principles", at a high enough level of abstraction to flush all the details down the toilet, and then upholding those (contested!) principles instead of the actual details, is a mechanism for avoiding upholding the Constitution.

    And the suggestion of upholding "constitutional principles against bigotry"; It's just the notion that whether the Constitution's 'principles' apply depends on motives, not actions. A handy thing to believe when you think your motives are good, but you want to do something that technically violates what the damned text says, like treating people unequally under the law.

  15. Brett,

    You would seem considerably less asinine if you had merely agreed that, on this point, you find yourself in agreement with the majority of liberals and opposed to the majority of conservatives. Note, for example, how E Volokh handles this- simple statement of principle.

    But apparently this doesn't jive with your self-image; you need this imaginary line between your 'reading' the Constitution and liberals who are abstracting principles in some ungodly manner- even if you agree with a liberal on Constitutional interpretation, you apparently need to find some way of distinguishing your way of thinking as more correct. Of course, it's nonsense: people often speak of eg the principle of "freedom of speech"- nb the actual text of the Constitution- or just as easily of "free speech", not the literal text but certainly the same principle being discussed. Or, to get closer to your heart, the "right to bear arms" obviously includes a right to ammo, and bars a 10^6% tax on guns (or ammo). Although those do not exist in the text itself, they are abstracted from it in such a way as to preserve the actual right to be armed as opposed to a purely textual right to own a weapon but not to own ammunition.

    I don't what what bugbears you have in your brain that prevent you from merely agreeing and moving on, or even not posting. It certainly seems pathological to have to find illusionary disagreements. "That’s the point here: The Constitution should be upheld, PERIOD" as a critique of "upholding basic Constitutional principles against bigotry", as if defending Constitutional principles against one specific threat somehow implied a willingness to not defend them against other threats.

    Perhaps if you viewed politics and Constitutional matters less as a partisan and more as a genuine upholder of *ahem* principles, you would not find yourself in such an absurd position.

  16. Carlton, I don't particularly expect to agree with most conservatives all the time, being both a libertarian, and an atheist. But I'm not sure I'm in disagreement on this particular issue; My position is that they have a legal right, if they succeed in buying the property, to build a mosque there. I haven't seen a lot of conservative voices disagreeing with that. I also have my suspicions as to the motives behind building it, though point 1 renders them irrelevant. Again, this seems to be a widespread conservative view, though conservatives are less "suspicious" than improperly certain on the matter.

    And, of course, on this score I'm in serious disagreement with most liberals, because I'd, for precisely the same reason, let them build a Sam's club on the site. (This is as much about property rights as religious liberty, to me.) But how many 'liberals' would see a local government barring somebody from building a Sam's club as a serious violation of liberty? Conservatives are far more likely to agree with me on that score.

    The distinction between enforcing the Constitution, and the Constitution's principles, is scarcely illusory. Take the commerce clause, which gives Congress the authority to regulate actual commerce, which actually crosses state borders. It's been expanded to give Congress power to regulate things neither commerce nor interstate, on the theory that it would violate the principle of the thing if Congress's regulation of the commerce it IS allowed to regulate were somehow rendered less than totally effective by allowing anything it isn't allowed to regulate to escape it's grasp.

    Or, from the other side, take the Heller decision, which abstracted from the 2nd amendment some kind of vague principle concerning self-defense, and permitted infringements which weren't seen as violating this principle. But which are still infringements of the right which the 2nd amendment guarantees.

    A proper analysis of the 2nd amendment would ask what is an "arm', and what is an "infringement", not what the goal of the amendment was. And if you are going to ask the goal of the amendment, you should at least do a competent job of it. What a hack job of a decision… not as bad as the minority, that wanted to negate the amendment entirely, but still a real hack job.

    Anyway, I'm off to my oncologist for my quarterly exam, maybe we can explore this further this evening, if my 2 year old lets me.

  17. "My position is that they have a legal right, if they succeed in buying the property, to build a mosque there. I haven’t seen a lot of conservative voices disagreeing with that."

    You are not paying attention. See, for example
    http://www.foxnews.com/us/2010/08/13/fox-news-pol
    34% of respondents said that the government ought to block the construction of the Cordoba project. I assume that many of those are conservatives, although I don't have the cross-tabs. AFAICT roughly a third of Americans think the project is a good idea, roughly a third don't like it but think it's protected, and roughly a third want to use the government to block it.

    "And, of course, on this score I’m in serious disagreement with most liberals, because I’d, for precisely the same reason, let them build a Sam’s club on the site. (This is as much about property rights as religious liberty, to me.) But how many ‘liberals’ would see a local government barring somebody from building a Sam’s club as a serious violation of liberty? "

    Im not aware that this right you're seeking to protect exists in the Constitution. The rights that Brett would protect is a different conversation than the rights contained within the Constitution I think- and you've done no small amount of demanding that we adhere to the Constitution itself rather than any individual's list of rights that they would prefer to see in that document.

    Liberals- heck, most people I think- support things such as zoning laws and noise laws. Which can, like virtually every form of government power, be misused. But I don't find that a persuasive argument against their overwhelmingly positive use in most cases, or that the freedom to turn my house into a strip club or waste incinerator site ought to outweigh my neighbor's freedom to enjoy their property without the burdens caused by my actions. Zoning laws are as much about protecting property as limiting it.

    "A proper analysis of the 2nd amendment would ask what is an “arm’, and what is an “infringement”, not what the goal of the amendment was."

    Im not sure why you think abstracting the idea of "arm" is is somehow fundamentally different from abstracting the meaning of "right to bear arms".

    But even this limitation on the reading would not preclude a million-percent tax on firearms, or a ban on ammunition- if we take the text literally and do not attempt to extract the underlying principle from the text.

    So let me ask- do you think a one-million-percent federal tax on firearms and ammunition would be Constitutional? It appears to satisfy the text, although it bluntly violates the principle behind the text.

    Does "freedom of the press" only apply to literal presses, or can we abstract it to cover TV, radio, and internet reporting?

    What you are complaining about with the Commerce Clause is not the process of abstraction of principle itself- this is necessary as pointed out above to prevent rights from being technically provided while actually being abridged (or, the case of some rights eg "freedom of the press", to even determine what concrete actions are protected by the abstract right). You are merely saying that this *can* be done badly. Of course, I would agree, pointing out eg Justice Thomas's position that the CIC clause grants the President the power to imprison US citizens without trial. But that doesn't invalidate the process, any more than a single corrupt judge invalidates our entire system of justice.

    And that still doesn't have any bearing on the matter at hand. You agree with the author of the post, but had to manufacture a disagreement rather than distastefully agreeing with a liberal about something. And I think this says something about how you view political disagreements and politics in general ie more as a contest, a sporting event with 'my team' and 'your team', and less as an attempt to formulate and adhere to principles.

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