Wednesday, August 24, 2005
At Volokh, Jim Lindgren discusses a forthcoming book by Justice Breyer. The comments section gets into a freewheeling discussion of theory. Today I'm doing a lot of blogging and chores around the house instead of getting writing assignments done.
This was what I commented:
Jim: The publishers will probably be happy to send you a review copy by tomorrow's mail.
Eh, et alia: This thread, which may be drifting off topic slightly, has inspired me to consider a 13th Amendment incorporation doctrine. The constitution prohibits involuntary servitude, and by implication, badges of slavery. Certain rights are implicit in the concept of ordered liberty, which, if denied, could be construed as badges of slavery. The right to write and read, the right to bear arms, the right to not have troops quartered in one's home, property taken without compensation, and so forth. I do not here address the abortion issue. A right of privacy is an aspect of liberty. The denial of liberty implicates badges of slavery.
OK, back to Breyer. With the exception of Eldrige, Breyer has yet to impress me much, and I'm not sure where he's going with the book. But I think he certainly has a point that one of the constitution's themes is concern with democratic process. Not only the first, 14th, 15th, 19th, poll taxes, term limits, voting age, succession, and so on show a deep concern with democratic process, which leaves some room to speculate about the intent of the ratifiers and what general principles might be indicated by these more specific changes. I don't like the view in Austin or McConnell that the rich have less of a right to speak than others, because often it is only the rich who can manage to litigate these issues against the deep pockets of the goverment; I do not object when rich parties establish democratic freedoms my poor clients can then rely on.
This was what I commented:
Jim: The publishers will probably be happy to send you a review copy by tomorrow's mail.
Eh, et alia: This thread, which may be drifting off topic slightly, has inspired me to consider a 13th Amendment incorporation doctrine. The constitution prohibits involuntary servitude, and by implication, badges of slavery. Certain rights are implicit in the concept of ordered liberty, which, if denied, could be construed as badges of slavery. The right to write and read, the right to bear arms, the right to not have troops quartered in one's home, property taken without compensation, and so forth. I do not here address the abortion issue. A right of privacy is an aspect of liberty. The denial of liberty implicates badges of slavery.
OK, back to Breyer. With the exception of Eldrige, Breyer has yet to impress me much, and I'm not sure where he's going with the book. But I think he certainly has a point that one of the constitution's themes is concern with democratic process. Not only the first, 14th, 15th, 19th, poll taxes, term limits, voting age, succession, and so on show a deep concern with democratic process, which leaves some room to speculate about the intent of the ratifiers and what general principles might be indicated by these more specific changes. I don't like the view in Austin or McConnell that the rich have less of a right to speak than others, because often it is only the rich who can manage to litigate these issues against the deep pockets of the goverment; I do not object when rich parties establish democratic freedoms my poor clients can then rely on.
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