The Volokh Conspiracy

In his first Inaugural Address, President Obama famously said that we should not ask “whether our government is too big or too small, but whether it works.” I criticized this indifference to the size of government in one of my very first posts of the Obama Presidency. More recently, however, longtime Obama adviser David Axelrod recognized that the size of government does matter after all:

As the nation’s chief executive, President Obama is accountable for the IRS, State Department and Justice Department. His longtime adviser David Axelrod last week blamed a too-big government for the scandals: “Part of being president is that there’s so much beneath you that you can’t know because the government is so vast.” [HT: Don Boudreaux]

In my 2009 post on Obama’s Inaugural Address and in a forthcoming book, I explained that one of the dangers of big government is that rationally ignorant voters are unable to effectively monitor its activities. A closely related problem is that the modern federal government is also too large for the president to effectively monitor – even with the help of topnotch advisers like Axelrod.

Axelrod’s defense of Obama is actually very plausible. It is quite possible that Obama didn’t know about the IRS’ abusive targeting of conservative groups, and that if he had known he would have ordered them to stop – if only to forestall a scandal that might become a dangerous political liability. Yet Obama probably didn’t know because, as Axelrod puts it, “the government is so vast” that he could not possibly keep track of what it was doing.

In fairness to Obama, much of the government growth that makes his job so difficult occurred on his predecessor’s watch. The current administration is far from solely responsible for the overgrown size of modern government. But the president would be entitled to greater sympathy if he hadn’t spent much of the last four years expanding the size of government even further, and claiming that we shouldn’t worry about its growth.

Patrick Allen Foster of the Pub Editor blog has an interesting round-up of commentary generated by Matthew Yglesias’ recent Slate article on Star Trek, including my own post on the subject.

My wife and I recently watched Star Trek: Into Darkness, the second in the series of J.J. Abrams-directed”reboot” Star Trek movies that began in 2009. On the plus side, the film had some impressive action scenes and special effects. It also had more and somewhat better character development than its predecessor. Long-time fans of the series might like the many clever nods to the original series from the 1960s. At the very least, the movie was fun to watch, and I think we got our money’s worth.

Nonetheless, the negatives outweigh the positives. Unsurprisingly, Into Darkness has most of the same flaws as the previous Abrams Star Trek movie, which I criticized here. Both films essential turn Star Trek into an action movie that just happens to utilize Trek characters and settings. I am far from an uncritical admirer of Star Trek as envisioned by Gene Roddenberry and his successors. Nor was I ever the kind of fanatical Trekkie who goes to conventions wearing Vulcan ears or signs up for classes at the Klingon Language Institute. But, despite its many flaws, I admired the Star Trek franchise’s willingness to take on big questions about the kind of future we should want for humanity. Abrams’ “reboot” essentially ignores all serious issues, and just ramps up the action. I don’t deny that a “reboot” may have been needed, given the poor quality of the last several old-line Star Trek movies; but not a reboot that jettisons almost everything that made Star Trek interesting and unique.

In addition, Into Darkness has huge plot holes big enough to fly a whole fleet of Romulan warbirds through. In the interest of avoiding spoilers, I won’t go through them in detail. I will only note that, for the Federation to get into the predicament that is the main focus of the plot, Star Fleet’s leadership would have to be ridiculously stupid. To take just one of many examples, it seems that Star Fleet Headquarters and Earth generally have no fixed defenses of any kind against incoming warships and missiles, even though previous history clearly established that such defenses are both feasible given the level of their technology, and clearly necessary, given previous enemy attacks. Yet none of the characters even mention this and other comparably ridiculous mistakes, not even the supposedly hyper-logical Mr. Spock (who makes some whopping errors of his own in the movie, which are also ignored by the other characters).

Perhaps the real implicit message of the reboot movies is to endorse the views of social critics who worry that advancing technology has bred a “generation of nincompoops.” Maybe the producers expect the nincompoopery to get even worse in the future, infecting Vulcans and Klingons as well as humans. Indeed, if the Klingons, Romulans, and other rivals of the Federation were minimally competent, it’s hard to understand how the Star Fleet portrayed in the reboot movies could possibly have become a major power in the galaxy. Maybe the “darkness” into which the Federation has descended is a severe outbreak of extreme stupidity among Star Fleet’s best and brightest. Although I strongly disagree with this kind of technopessimism, a science fiction series that seriously explored the idea that high technology leads to a “dumbed down” society might be interesting. Unfortunately, Abrams’ movies seem to raise the issue only unintentionally.

Next Monday at 7 AM eastern time (probably rebroadcasting at that time in other time zones), I will be on Stand Up! with Pete Dominick on Sirius XM Satellite Radio, discussing my forthcoming book Democracy and Political Ignorance: Why Smaller Government is Smarter, which will be published by Stanford University Press in early fall (probably September or early October).

Stanford UP has created a website for the book. You can, if you like, preorder the book there. We even have a special coupon code just for Volokh Conspiracy readers that will give you a 20% discount at the Stanford site; the code is S13LAW. OK, actually the code is available to anyone who wants to use it. But at least VC readers will now be the first to find out about it! You can also preorder the book at Amazon, while still being eligible for any price reductions that either Amazon or Stanford UP adopt between now and the publication date.

Sirius Satellite Radio has posted the audio of my recentdiscussion of the Supreme Court with George State University Professor Eric Segall on Stand Up! With Pete Dominick. The audio is available here.

Much of the discussion focuses on general issues of constitutional theory and the extent to which the Supreme Court is or is not politicized, which I recently wrote about in this article. But towards the end, we also talked about the gay marriage cases currently before the Court, including my view that laws banning same-sex marriage are examples of unconstitutional sex discrimination.

After years of resistance, I have finally joined Twitter. Perhaps, as the Borg would say, resistance is futile and assimilation into Twitter is inevitable. For readers who may be interested, my Twitter username is IlyaSomin.

Despite this capitulation, I will not be completely assimilated into the Twitterverse. Given my rational ignorance about pop culture other than sports and science fiction, I won’t be tweeting any celebrity-related gossip. Not even if I somehow turn into the Twitter equivalent of Locutus. Instead, I will most likely be using the account to tweet about my activities elsewhere, such as recent or forthcoming books, articles, speaking appearances, and the like.

At Slate, Matthew Yglesias has an interesting article reviewing all of the Star Trek and many of the movies from the original 1960s series to the present. He especially focuses on the series’ ideology and politics, and its “utopian” vision of the future.

Despite coming at the issue from a very different perspective, I actually agree with much of Yglesias’ analysis. I think he is right that Deep Space Nine had many of Star Trek’s best episodes, that Voyager was the worst of the TV shows, and that the 2009 “reboot” movie (which I criticized here) takes the series in the wrong direction. Most fundamentally, I think we agree that Star Trek is interesting because it takes on serious issues about the kind of future we should want for humanity. That is a big part of the reason we are still talking about Trek almost fifty years after it began.

On the other hand, I have a much more critical perspective than Yglesias on Star Trek’s mostly left-wing politics, which I articulated in this Institute for Humane Studies podcast. As I explain in the podcast, I like Deep Space Nine better than the other series in part because it is more willing to question the Federation’s values, though it ultimately does still endorse them. I also disagree with Yglesias’ view that the economy of Star Trek is post-scarcity, thereby making socialism workable (and indeed the only feasible economic system). As I discuss here, many important goods and services are still limited in the Star Trek universe, including the energy sources that power starships, planetary real estate, a variety of personal services, and – most importantly – replicators. The replicator – the very technology that supposedly eliminates scarcity – is itself scarce; the Federation and its various rivals apparently cannot replicate a replicator.

Even if scarcity were more fully eliminated than in the Star Trek universe, I don’t think it follows that socialism is the only viable response, or that the knowledge and incentive problems that make socialism a menace in our world would suddenly disappear. So long as there are any important scarce goods at all, a government monopoly over them would still be a terrible danger, even if the government were democratic. If scarcity were truly abolished and anyone could have any good or service they wanted at zero cost, there would be no point to socialism, since we would not need government to either facilitate production or redistribute wealth.

Be that as it may, I agree with Yglesias that there is much to admire in Star Trek at its best, and I like some of his ideas for a new Star Trek series. Perhaps a new series will go where no series has gone before and hire him as a consultant.

The Institute for Justice, a leading libertarian public interest law firm that has litigated numerous property rights cases, reports that the Illinois state senate has passed a bill authorizing the use of eminent domain for the benefit of casinos:

The bill passed 32-20 in the state Senate on May 1 and is now being considered by the House Executive Committee. Gov. Pat Quinn has previously vetoed two Chicago casino bills in the past. However, while the governor still has concerns about this new casino bill, he has indicated he could sign, so long as gambling revenue funds education and ethics standards are tightened. (After all, four of Illinois’ last seven governors have gone to prison.) Yet casinos abusing eminent domain apparently hasn’t crossed Quinn’s mind.

As the IJ post notes, takings for the benefit of casino interests have occurred in other states, and often lead to the same sorts of abuses as other “economic development” condemnations of the type upheld by the federal Supreme Court in Kelo v. City of New London. Such takings are routinely used by politically powerful firms to acquire property from the politically weak. They also often destroy more economic value than they create. I discuss these problems in much more detail in this article.

In the aftermath of Kelo, some 44 states passed eminent domain reform laws intended to curb such abuses. But Illinois’ law is one of many that contain major loopholes that prevent them from providing much in the way of meaningful protection for property owners. The IJ post notes that Illinois’ 2006 law rates only a D+ under their grading scale.

Hopefully, the Illinois House of Representatives will reject the Senate bill. The legislation is currently before the House Executive Committee. If the House does not reject the bill, it is possible that state courts would strike it down. In a 2002 decision, the Illinois Supreme Court ruled that the potential economic benefits of expanding the operations of a private business is not a “public use” justifying the use of eminent domain under the state Constitution. As the Court put it (quoting a lower-court dissenting opinion), “the economic by-products of a private capitalist’s ability to develop land cannot justify a surrender of ownership to eminent domain.” At least some takings for the benefit of casino interests could run afoul of this ruling, although the state supreme court did not categorically ban all takings that transfer land to private parties for economic development purposes.

UPDATE: I have made a few stylistic revisions to this post.

This Thursday between 8 AM 9 AM eastern time, I will be appearing on Stand Up! With Pete Dominick, on XM Sirius satellite radio to discuss the major cases of the current Supreme Court term. I will be joined by Professor Eric Segall of Georgia State University. I am not sure exactly which cases we will discuss. But it’s probably a safe bet that the gay marriage cases will be among them, along with Fisher v. University of Texas, the affirmative action case. Since the show lasts a whole hour, we should be able to cover a significant amount of ground.

With Rhode Island and Delaware recently becoming the tenth and eleventh states to permit same-sex marriage and Minnesota likely to soon become the twelfth, now is a good time to reconsider the impact of judicial decisions requiring state recognition of gay marriage. The trend towards gay marriage began in 2003, with a Massachusetts Supreme Judicial Court decision holding that the state constitution required recognition of same-sex marriage. At first, nearly all the states that recognized gay marriage did so as a result of judicial decisions rather than legislation. In this way, it seems clear that the cause of gay marriage benefited greatly from judicial action.

Nonetheless, scholars such as Gerald Rosenberg and Jeff Rosen argued that such litigation harmed the cause of gay rights more than it helped it, because it tended to generate a political backlash, a theory that gained some credence in 2008, when Proposition 8 reversed a pro-gay marriage California Supreme Court decision. In a series of posts written in 2008-2009, I argued that such skepticism was unjustified, and that pro-gay marriage judicial decisions were a major net benefit for the cause of gay rights, backlash notwithstanding.

I think recent events largely vindicate my side of this debate. Since early 2009, the number of states legalizing same-sex marriage has grown from four to a soon-to-be twelve, with most of the recent ones doing so through the legislative process. This undercuts claims that judicial action undercuts political action. Public opinion has rapidly moved in a pro-gay marriage direction, undercutting arguments that litigation would turn the public against the cause. And, of course, the Supreme Court might be on the brink of requiring recognition of gay marriage from some or all of the states that still deny it. That is highly unlikely to have happened absent litigation-driven progress at the state level. Even if the Supreme Court upholds California Proposition 8, it would likely do so only by a very narrow margin that could easily be reversed by future decisions – signalling that the issue is contested in a way that was clearly not the case just 10-15 years ago.

Obviously, some of this progress is the result of long-term trends in public and elite opinion that would have occurred even without litigation. But it is unlikely it would have happened anywhere near so quickly were it not for the example effect of the establishment of gay marriage in Massachusetts and other states where it happened through judicial action. These decisions made gay marriage seem much more thinkable and mainstream than before. They also helped galvanize the gay rights movement. Furthermore, they made the previously radical idea of civil unions seem moderate by comparison, which in turn helped lead to their adoption in ten states that still do not permit full-blown gay marriage. As in the case of the civil rights movement, feminism, the gun rights movement, and property rights activists, among others, judicial action and political action turned out to be mutually reinforcing rather than antagonistic.

The political backlash against the 2003 Massachusetts decision did lead to the enactment of anti-gay marriage constitutional amendments in some thirty states. But for reasons I noted in this 2009 post, that was only a minor setback for gay rights activists. All but one of these states (California) were unlikely to enact gay marriage in the near future anyway. In addition, most of their constitutions are relatively easy to amend, which means that it will not be hard to reverse these amendments when and if public opinion in the state changes.

None of this proves that pro-gay marriage decisions were legally correct. In my view, gay marriage bans violate the federal Constitution because they constitute sex discrimination, and also those state constitutions that contain Equal Rights Amendments. But the correctness of these decisions is separable from their impact. They could be practically effective but legally dubious, or vice versa. Overall, litigation has turned out be a highly effective strategy for gay marriage advocates, whatever you might think about the correctness of their legal arguments.

That does not mean, of course, that litigation is always an effective strategy for all social movements. In order for it to succeed, there has to be at least some amount of preexisting support for the cause among both elite and general public opinion. Efforts to secure recognition of same-sex marriage through legal action flopped in the 1970s, because that base level of support was still lacking. Even where litigation does work, it is usually effective only in tandem with political activism, rather than completely removed from it.

But the recent history of gay marriage does show that litigation can often help advance a cause significantly faster and more effectively than would be the case otherwise. It therefore helps undercut the arguments of revisionist scholars who claim that such action is almost always ineffective, except in cases where the political process is likely to reach the same results on its own.

Co-blogger David Bernstein and I criticized such revisionist arguments in this 2004 article, focusing on the history of civil rights litigation. We pointed out several ways in which litigation can help disadvantaged minorities even when the political majority remains hostile or indifferent. The gay marriage case seems consistent with our theory as well.

At Deadspin, Reuben Fischer-Baum has an interesting piece cataloguing the highest-paid state employees in each of the fifty states. Forty of fifty are coaches, all but one of them in either football or basketball.

As Fischer-Baum notes, this state of affairs is not quite as egregious as it may at first seem. Many of these Division I football and basketball programs generate a lot of revenue for their state universities, and the coaches are often paid out of that revenue rather than taxpayer funds. I would also add that NCAA coaches are among the very few state employees who face a serious risk of being fired for poor performance. Most Division I football and basketball coaches get fired within a few years of starting a new job.

On the other hand, as Fischer-Baum also points out, many of the coaches are paid far more than is justified by their marginal contribution to their universities’ revenue streams, even as the NCAA – supported by state and federal governments – continues to operate a cartel that tries to prevent all financial compensation for the players. I made the case for paying Division athletes here and here.

Finally, the state of Maine deserves special recognition from legal academics. According to Fischer-Baum, the highest-paid state official in the Pine Tree State is a law school dean.

UPDATE: In the original version of this post, I accidentally got Fischer-Baum’s first name wrong (I put “Robert” instead of “Reuben”). Perhaps I subconsciously confused him with the late Bobby Fischer. In any case, I apologize for the error, which has now been corrected.

The Health Care Case: The Supreme Court’s Decision and its Implications - A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays on numerous aspects of the health care decision by a wide range of scholars, including VC-ers Jonathan Adler, Randy Barnett, and myself. There is also a large number of contributions by leading scholars on the other side of the issue, including Jack Balkin, Jamal Greene, Andrew Koppelman, Gillian Metzger, and Neil Siegel, among others. The Oxford University Press website has a complete table of contents here.

My own contribution to the volume addresses the Court’s analysis of the Necessary and Proper Clause, and explains why the individual health insurance mandate was not “proper” even if it could be considered “necessary.” An earlier version of that essay is available on SSRN here.

A recent Kaiser Family Foundation poll (Kaiser is one of the leading pollsters focusing on health care issues) finds that 42% of Americans are unaware that the Affordable Care Act is still the law of the land. Kaiser reports that that figures includes “12 percent who believe the law has been repealed by Congress, 7 percent who believe it has been overturned by the Supreme Court and 23 percent who say they don’t know enough to say what the status of the law is.” And as both Kaiser studies and other polls reveal, it is likely that many of the remaining 58% do not actually know very much about what is included in the law. If only the Kaiser poll had been published a little earlier, I would have included it in my forthcoming book Democracy and Political Ignorance: Why Smaller Government is Smarter (forthcoming this fall from Stanford University Press).

This kind of widespread ignorance is striking in light of the fact that the ACA has been widely debated for over three years, and information about is readily available from a wide range of sources, online and elsewhere. Some will find the result shocking. But it will not surprise long-time VC readers who know about the problem of rational political ignorance. Much of the public often ignores readily available information about politics and public policy because they find the subject uninteresting and there is little incentive to learn about it just for the purpose of becoming a better-informed voter. For that reason, even people who are by no means stupid can and often do rationally choose to remain ignorant about a variety of political issues. Those who do become relatively well-informed about politics often evaluate political information in a highly biased way, which is also rational, given that truth-seeking may not have been their main objective in following politics. Unfortunately, individually rational behavior often leads to bad collective results when voters take their ignorance and bias to the polls.

Today is May Day. Since 2007, I have advocated turning this date into Victims of Communism Day (though I should note that I didn’t invent the idea). In my very first post on the subject, I outlined the rationale for this step:

May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their regimes. I suggest that we instead use it as a day to commemorate those regimes’ millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century’s other great totalitarian tyranny. And May Day is the most fitting day to do so. I suggest that May Day be turned into Victims of Communism Day….

The main alternative to May 1 is November 7, the anniversary of the communist coup in Russia. However, choosing that date might be interpreted as focusing exclusively on the Soviet Union, while ignoring the equally horrendous communist mass murders in China, Cambodia, and elsewhere. So May 1 is the best choice.

In this 2009 post, I discussed the issue of why the relative neglect of communist crimes matters. In a post last year, I defended the choice of May 1 against other possible alternatives, such as November 7 and August 23, the anniversary of the Nazi-Soviet Pact. To briefly summarize, May 1 is better than November 7 because it does not primarily focus on any one country. It trumps August 23 for the same reason, and also because that date is understandably a time for commemorating Nazi crimes as well as communist ones. The victims of the latter deserve a separate date of their own. If August 23 commemorations do not obviate the need for Holocaust Memorial Day, they also do not eliminate the need for a separate Victims of Communism Day. I also defended the choice of May 1 against the criticism that this date should be retained as a holiday for workers and labor unionists instead.

That said, as I have previously noted, I am not opposed to choosing a different date if we can forge a consensus around November 7, August 23, or some other date, but not May 1. The best possible date for Victims of Communism Day should not be the enemy of the merely good.

My written testimony on the use of drones for targeted killing in the War on Terror submitted for yesterday’s hearing the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights is now available here. You can view the video of the oral testimony (both mine and the other witnesses) here. I will post links to the other witnesses’ written testimony when and if they become available.

UPDATE: The written testimony of all the witnesses is now available here (see list of their names off to the right).

UPDATE #2: A written statement submitted for the hearing by Senator Rand Paul is available here.