Author Archive

“Scholarship, which is meant to be a bulwark of civilization against barbarism, is ever more frequently turned into an instrument of rebarbarization,” wrote Leo Strauss. Here, drawn from the MLA International Bibliography, are a few recent examples of that well-established trend:

Chaudhri, Amina. “ ‘Straighten up and Fly Right’: HeteroMasculinity in The Watsons Go to Birmingham—1963.” Children’s Literature Association Quarterly 36 (Summer 2011): 147-63.

Holcombe, Heather E.  “Faulkner on Feminine Hygiene, or, How Margaret Sanger Sold Dewey Dell a Bad Abortion.” Modern Fiction Studies 57 (Summer 2011): 203-29.

O’Bryan, C. Jill. “Ontology and Autobiographical Performance: Joanna Frueh’s Aesthetics of Orgasm.” Drama Review 55 (Summer 2011): 126-36.

Stobie, Cheryl. “Indecent Theology, Trans-Theology, and the Transgendered Madonna in Chris Abani’s The Virgin of the Flames.” Research in African Literatures 42 (Summer 2011): 170-83.

Cole, Lucinda, et al. “Speciesism, Identity Politics, and Ecocriticism: A Conversation with Humanists and Posthumanists,” in “Animal, All Too Animal,” special issue, Eighteenth Century: Theory and Interpretation 52 (Spring 2011): 87-106.

Christ, Carol P.  “The Last Dualism: Life and Death in Goddess  Feminist Thealogy [sic].”  Journal of Feminist Studies in Religion. 27 (Spring 2011): 129-45.

Schuyler, Michael T. “He ‘coulda been a contender’ for Miss America: Feminizing Brando in On the Waterfront.” Canadian Review of American Studies 41 (Mar. 2011): 97-113.

Bradshaw, G.A. “An Ape among Many: Co-Authorship and Trans-Species Epistemic Authority,” in “Ecocriticism and Biology,” special issue, Configurations: A Journal of Literature, Science, and Technology 18 (Winter 2010): 15-30.

Kim, Kwang Soon. “Queering Narrative, Desire, and Body: Reading of Jeanette Winterson’s Written on the Body as a Queer Text.” Journal of English Language and Literature  56 (Winter 2010): 1281-94.

Maxwell, Anne. “Postcolonial Criticism, Ecocriticism and Climate Change: A Tale of Melbourne under Water in 2035.” Journal of Postcolonial Writing 45 (Mar. 2009): 15-26.

And finally, hegemonic, white, masculine speech in the aftermath of Hurricane Katrina apparently has emerged as a sub-specialization of victimology:

Macomber, Kris, Christine Mallinson, and Elizabeth Searle. “ ‘Katrina That Bitch!’: Hegemonic Representations of Women’s Sexuality on Hurricane Katrina Souvenir T-Shirts.” Journal of Popular Culture 44 (June 2011): 525-44.

Harris, Kate Lockwood. “ ‘Compassion’ and Katrina: Reasserting Violent White Masculinity after the Storm.” Women and Language  34 (Spring 2011): 11-27.

I would welcome additional submissions.

Revolution against tyranny has blazed across North Africa and Arabia, as President George W. Bush envisioned in his idealistic second inaugural address. The conflagration was lit on December 17, 2010 by Mohamed Bouazizi of Tunisia, who had been denied a license to sell fruits and vegetables from his cart because he didn’t pay a bribe. A policewoman confiscated his vegetable cart and his wares. He was beaten when he protested, and on December 17 the humiliated young man set himself on fire. He died a few weeks later. Contagious demonstrations in Tunisia quickly followed the fateful denial of Mr. Bouazizi’s liberty.

The liberty whose denial inspired the overthrow of regimes in Tunisia, Egypt and, with any luck, Libya was economic liberty, or the right to earn a living. Although that liberty was obviously important to Mr. Bouazizi, the left regards economic liberty, to the extent it regards it as a liberty at all, as a lower order of liberty.

So do the federal courts. Economic regulations get minimal scrutiny under the Equal Protection and Due Process Clauses of the Constitution. The Takings Clause and the Contract Clause, which were intended to protect property rights and contract rights, have been enfeebled by the Supreme Court.

The division between economic liberties and other liberties is not one the Founders of this republic would have understood. Our revolution too was provoked by economic depredations. The interrelation of liberties is hard to miss. Free speech is much more difficult to exercise effectively without property that individuals rather than governments control.

State and local governments do most of the suppressing of the right to earn a living and the confiscating of vegetable carts in the United States. Conservatives who believe in federalism should be careful not to romanticize the states. From the perspective of an entrepreneur, another layer of regulation is no more felicitous merely because it emanated from a state capital.

States require licenses for all manner of innocuous occupations. Although consumer protection is the usual excuse, little is accomplished by occupational licensing beyond preventing people from getting a start or a new start in life and restricting the supply and increasing the cost of a given type of professional.

The District of Columbia, which unfortunately for its residents possesses home rule powers, recently decided to require wildlife control operators (people who trap varmints infesting houses) to be licensed. As is often the case with occupational licenses, wildlife control operators will have to take a class, pass an exam, and pay a fee. But in addition, the legislation eccentrically requires licensed wildlife control operators to capture and remove animals in ways that aren’t lethal, painful, or even “stressful” for the animal.

While states are the primary malefactors when it comes to occupational licensing, the Obama administration, of course, would not want to miss out completely on a means of controlling economic activity. And so the Internal Revenue Service has recently adopted regulations requiring tax return preparers who aren’t lawyers or CPAs to obtain a tax preparer identification number and to pay a user fee. The IRS intends to require competency testing and continuing education of tax return preparers.

On a larger scale of licensing, the Obama administration has capriciously denied permits to businesses that want to produce energy. Last month the Environmental Protection Agency vetoed a water permit that the Army Corps of Engineers had granted to a West Virginia coal mine in 2007 after nearly a decade of study.

The administration has imposed a series of unlawful moratoria on drilling in the Gulf of Mexico. Companies servicing offshore oil and gas drilling argued before U.S. District Judge Martin Feldman, a fiery intellectual, that the first moratorium violated the Administrative Procedure Act because it was arbitrary and capricious. Writing that he was “unable to divine or fathom a relationship between the [government’s] findings and the immense scope of the moratorium,” Judge Feldman issued a preliminary injunction against the moratorium.

The Interior Department quickly issued another moratorium, which it withdrew in October. Since then, the administration has imposed a de facto moratorium by not granting any permits for deepwater drilling in the Gulf. Finding those evasions to be in contempt of his preliminary injunction, Judge Feldman ordered the government to pay the companies’ attorneys’ fees. And last week he ordered the Bureau of Ocean Energy Management to act on five pending permit applications within thirty days, saying that the “permitting backlog is increasingly inexcusable.” So far, neither the court’s order nor soaring oil prices have awakened the Bureau of Ocean Energy Management.

Perhaps the ardor for freedom will circle back from the Middle East to the United States without any unemployed miners or offshoremen having to set themselves afire.

Rights talk pervades the litigation over California’s Proposition 8. The defenders of Proposition 8 point out that the Supreme Court has never recognized a right to same-sex marriage. Indeed, in 1972 the Court said that such a claim doesn’t even raise a substantial federal question. On the other hand, the opponents of Proposition 8, using the old trick of formulating a right at higher level of abstraction, claim that they are vindicating the right to marry, which the Supreme Court has recognized as a fundamental right.

A right that’s overlooked in the whole discussion is the right to self-government, a right recognized in the Declaration of Independence and in the California Constitution, which says, “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” Cal. Const. art. II, §1. This right is contracted to extent the courts command governments to expand the right to get a marriage license beyond that authorized by the people.

The voters of California began exercising their right to alter or reform the government as it relates to marriage in 2000, when they adopted a proposition to ensure that the state legislature couldn’t repeal the California Family Code’s restriction of marriage to opposite-sex couples. The proposition added this provision to the Family Code: “Only marriage between a man and a woman is valid or recognized in California.” Only marriage and nothing else?  A lease between a man and a woman, a contract for sale between a man and a woman aren’t valid or recognized in California? I assume they are. Misplacement of the word “only” is such a common draftsman’s error that nobody notices it anymore, and everybody knew what the proposition was supposed to mean, including the California Supreme Court, which held it violated the California Constitution. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).  

The people responded by passing Proposition 8, putting the same unfortunate language in the California Constitution. Ironically they put it in article I, the article entitled “Declaration of Rights.” To be precise, they put it in article I, section 7.5. But the provision is never referred to as article I, section 7.5 or as section 7.5—just Proposition 8—as if it weren’t really part of the constitution.

Attorney General Jerry Brown adopted that attitude in challenging the validity of Proposition 8. He argued that Proposition 8 violated the California Constitution, forgetting that Proposition 8 was the California Constitution. His argument, as well as a more serious argument based on election law, was rejected by the California Supreme Court.

The stakes were raised when Ted Olson, the brilliant solicitor general in the second Bush administration, and David Boies, his former opponent in Bush v. Gore, brought on behalf of disappointed gay couples (“Plaintiffs”) a challenge to Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. In their well-funded lawsuit, Perry v. Schwarzenegger, they sued in federal court Gov. Schwarzenegger, Attorney General Brown, two public health directors, and the clerks of two counties.

All of the defendants except the attorney general took no position on the merits of the case and refused to defend Proposition 8. The attorney general did them one better and conceded the unconstitutionality of Proposition 8. I’m not sure how that fulfilled the attorney general’s duty to prosecute or defend all actions in which a state officer is a party.

The case would virtually have been a collusive lawsuit had the people who proposed Proposition 8 (“the Proponents”) not intervened. At trial, the government defendants put on no case; the Proponents, a weak one. Most of the Proponents’ witnesses decided not to testify because the case was going to be televised. (Intimidation of opponents has been a hallmark of the gay marriage movement.) “Proponents’ evidentiary presentation was dwarfed by that of the plaintiffs,” sniffed Vaughn Walker, the presiding judge.

After a long trial, Judge Walker issued a long opinion. There he quarrels with the Proponents’ experts and gives their opinions little or no weight but enthusiastically embraces the opinions of the Plaintiffs’ experts.

That selectivity led to Judge Walker’s notorious findings of fact. Eighty of them. Some are just sloganeering (“Proposition 8 places the force of law behind stigmas . . . (#58); “Proposition 8 perpetuates the stereotype . . .” (#67)). Some are awfully subjective “facts,” while others aren’t facts at all. Number 61 says, “Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriages.” That’s a matter of law not fact, and it’s patently false on the face of the provision. In number 77, he lurches into theology: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Whatever truth there may be to this “fact,” the federal judge’s disparagement of the religious beliefs of his countrymen provides an ominous glimpse of the religious persecution to come when the new marital regime is combined with human rights ordinances.  

With his findings of fact in hand, Judge Walker careened through some conclusions of law and then, looking into the mirror that is the Fourteenth Amendment, found Proposition 8 unconstitutional. 

Of course, the government defendants did not appeal. That was to be expected, but it created a problem for the Proponents. The Proponents appealed, claiming that they had standing to appeal just as state legislators do if a law they passed is struck down. After hearing an hour’s worth of argument on standing and another hour’s worth on the merits, the U.S. Court of Appeals for the Ninth Circuit issued earlier this month a certified question to the California Supreme Court asking it whether California law gives the official proponents of an initiative an interest or authority “to appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The Ninth Circuit wondered whether the governor “may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else—including the initiative’s sponsors—is qualified to do so.”

Judge Reinhardt wrote separately to scold the parties for creating a problem they could have avoided. The governor and the attorney general could have eliminated the problem if either “had defended the initiative, as is ordinarily their obligation.” The Plaintiffs sued the clerks of only two of California’s fifty-eight counties and didn’t serve the rest with Judge Walker’s ruling. And the Proponents, for their part, could have gotten another clerk to intervene on their side. The judge declined to speculate on motives.

But one doesn’t have to speculate long to suspect that Plaintiffs’ counsel carefully restricted the defendants they sued in order to win an unopposed judgment and to shelter that judgment from appellate review. It would be truly extraordinary if a highly controversial case of great public significance could be rigged so that there was standing to conduct a trial but not an appeal.

If the Proponents survive the objections to their standing, they face two big problems on the merits. First, Proposition 8 leaves untouched California’s domestic partnership laws, which give same-sex couples the rights and duties of marriage but withhold the name of marriage, the “honorific designation,” as Judge Reinhardt called it. What that shows, according to the Plaintiffs, is that the only purpose of Proposition 8 is to insult gays and to label their relationships as inferior. They argued that since California allows domestic partnerships, it cannot claim that any substantial harm could come from allowing same-sex marriages because nothing of substance would change. If that’s true, then the benefits the state is supposed to derive from same-sex marriages, like an increase in adoptions, are also insubstantial, and the benefits that same-sex couples would derive are entirely sentimental.

Clearly, states considering domestic partnerships as a compromise should beware that they proceed at their peril.

Second, none of the advantages the Proponents put forward for heterosexual marriage seem to be threatened by homosexual marriage. Those advantages can be summarized like this. Because heterosexual couples have a natural ability to procreate, stabilizing their relationships in the institution of marriage benefits the couple, their children, and society. Maybe so, but, Judge Walker and the Plaintiffs triumphantly ask, how does excluding gays from that institution preserve heterosexual marriages or encourage heterosexuals to become monogamous and get married?

A philosophical answer to that question has been proposed recently, but not by the Proponents, who struggled with it. Finally, in the last few minutes of his rebuttal Charles Cooper, Proponents’ counsel, may have come up with a legal answer when he quoted from Johnson v. Robison, where Justice Brennan wrote, “When, as in this case, the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.” 415 U.S. 361, 383 (1974).

This turns the tables on the advocates of same-sex marriage, who always insist that their opponents prove a rational basis for subtracting same-sex couples from the institution. Robison suggests that isn’t the question: the question is whether adding same-sex couples to the institution promotes the legitimate governmental purpose that heterosexual marriage promotes. The Proponents could safely say that it doesn’t. The state has a legitimate interest in stabilizing relationships that have a biological tendency to produce offspring. Thus, the state has a rational basis for formalizing those relationships that it does not have for formalizing same-sex relationships.

Since the Proponents failed to demonstrate how allowing gays to marry damages heterosexual marriage, the argument I’ve suggested here should be given more prominence as the case proceeds, if anyone is left standing to raise it.

Here is a reflection from Federalist No. 57 relating to the faithless congressmen who lost their seats last week:  “All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, . . . the House of Representatives is so constituted as to support in the members an habitual recollection to their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can by effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when the exercise of it is to be reviewed, and when they must descend to the level from which they were raised: there for ever to remain unless a faithful discharge of their trust shall have established their true title to a renewal of it.”

Since approximately day two of his administration, President Obama has boasted about what he has done since “day one.” Actually, day one was relatively harmless. It was only a half day, and Obama spent it delivering another vapid speech, having a long lunch, and reviewing a boring parade. But on day ten, January 29, 2009, he began his project of giving employers additional reasons not to hire American workers. On that day he proudly signed the Lilly Ledbetter Fair Pay Act, which allows employees more time to sue employers for alleged pay discrimination.

And from that beginning, the project of exacerbating unemployment and prolonging the recession has been carried out on a broad front of initiatives. The government has borrowed capital and diverted it to less productive uses under the guise of stimuli. Complex new mandates and penalties regarding employee health insurance have been imposed on employers. Further uncertainty has been created by thousands of pages of impending financial legislation and rules and by the possibilities that new energy taxes will be imposed and that President Bush’s tax cuts will soon expire.

The Department of Labor’s Wage and Hour Division (WHD) has pitched in and done its part. Under the direction of Deputy Administrator Nancy J. Leppink, a stereotypically narrow and humorless bureaucrat, the WHD has taken an adversarial approach to employers. The WHD has hired 250 field investigators to police employers and expects to hire 90 more with funds allocated in the Department of Labor’s fiscal year 2011 budget.  At a “stakeholder forum” in May, Leppink said she couldn’t understand why the WHD should, as it had in the past, give a break to employers who come forward and acknowledge past violations.

In March the WHD announced that it was ending its longstanding practice of issuing opinion letters responding to questions from employers about how labor laws apply to their situations. The questions frequently concerned whether a type of job would be classified as exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). Rather than responding in opinion letters to employers’ questions about their specific situations, the WHD now issues “administrator interpretations” setting forth general interpretations of laws and regulations. The WHD claims that issuing administrator interpretations instead of opinion letters “will be a much more efficient and productive use of resources,” but so far it has only issued three of them.

While the WHD has ended its service of providing employers with opinions on the classification of their employees, it is preparing to issue regulations requiring employers to render opinions on that subject to the WHD. Next month a notice of proposed rulemaking is expected to be issued on rules under which”[a]ny employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it.”  This shift is consistent with the adversarial objective the WHD acknowledged in its Congressional Budget Justification: “WHD’s regulatory initiatives will be undertaken with an objective of determining where there are opportunities to shift the burden of compliance to the employer. . . .”

And so the businesses that the administration would like to induce into hiring people become the enemy if they do. On the bright side, however, the WHD has adopted a cheerful new slogan, “We Can Help.” They surely can, but if only they wouldn’t.

Sometime this spring, the U.S. Supreme Court will decide whether the Second Amendment to the Constitution applies to state and local governments. Many enthusiasts of gun rights might still be surprised to learn that the Second Amendment has never applied to state and local governments. It has protected, at least recently, the right to keep and bear arms against infringements by only the federal government and its enclaves, like the District of Columbia.

Actually, none of the Bill of Rights applies to the states, but the Supreme Court has decided that many of the rights it provides are protected by the Due Process Clause of the Fourteenth Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), which does apply to the states. Advocates of gun rights are very interested in whether the Court will incorporate the right to keep and bear arms into the Fourteenth Amendment. But many conservative legal activists and academics are more interested in whether a different clause of the Fourteenth Amendment is used for that purpose. In their view, the framers of the Fourteenth Amendment intended that the Privileges or Immunities Clause of the Fourteenth Amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”) would protect substantive rights while the Due Process Clause, as its name implies, would protect procedural rights. The gun control case that the Supreme Court is about to decide, McDonald v. City of Chicago, is seen as an opportunity to right an historical wrong, and so much more.     

In some circles, it is an article of faith (and partly superstition) that the Privileges or Immunities Clause was fatally misinterpreted at the outset by the Slaughter-House Cases and if only that case could be overturned economic liberties, which the Supreme Court has ignored since the New Deal, could enjoy a new springtime under a reborn Privileges or Immunities Clause.

The Supreme Court’s 1873 decision in the Slaughter-House Cases was the first time the Court interpreted the Fourteenth Amendment, which had been ratified just five years before. In that case the Court decided that an amendment whose purpose was “the freedom of the slave race [and] the security and firm establishment of that freedom” did not prevent the state of Louisiana from requiring New Orleans butchers to slaughter livestock at a location downriver from the city. The Court said that the Privileges or Immunities Clause  protected only rights of national citizenship, which did not include the right to butcher animals anywhere in New Orleans free of regulation. The examples the Court then gave of what were rights of national citizenship weren’t very helpful; the only one that has had any practical use has been the right to travel interstate.

As a result, the Privileges or Immunities Clause is the last frontier of the Constitution. Conservatives as well as liberals have been eager to open it up for the cultivation of new rights—and old ones. The libertarian Institute for Justice, which filed an amicus brief in McDonald, had previously tried without success to get the Slaughter-House Cases reversed in a series of cases in which they argued that the Privileges or Immunities Clause protected a right to earn a living. (I represented their opponent in one of them.)

This time the right to keep and bear arms is the vehicle, but the objective of eventually regaining protection for economic liberties seems to be the same. Alan Gura, counsel for the petitioner in McDonald, hinted at that objective in his brief by complaining that “[s]tate violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by federal courts.” At oral argument, the justices struggled to get Gura to divulge what those insecure rights might be. Finally, at the very end of the argument Justice Alito got him to admit that they included the right to contract.

A remark by Justice Thomas in an earlier case encouraged this Privileges or Immunities project, but he has also said that while the clause should be reconsidered it shouldn’t be used expansively. There didn’t seem to be any other enthusiasm for the Privileges or Immunities project on the bench during oral argument. Justice Scalia said to Gura, “what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.” 

If the Supreme Court does incorporate the Second Amendment, I suspect it will do it the old-fashioned way and leave the Privileges or Immunities Clause and the Slaughter-House Cases in peace. That is probably just as well given that the Supreme Court and the lower federal courts will soon be  getting more Obama appointees who may be expected to have designs of their own for the Privileges or Immunities Clause. There is no reason to believe that the federal judiciary will be any more protective of economic liberties and property rights under the opaque Privileges or Immunities Clause than it has been under the Due Process, Takings, and Contracts Clauses, which actually contain the words property, liberty, and contract.

Reviving the Privileges or Immunities Clause has intellectual and historical appeal, but it is no substitute for the harder task of convincing judges and the politicians who select them that property rights are human rights.