Back Issue Volume 16 | No 4 
Law and Political Reality

Getting Over the Constitution | Austin Bramwell
Abstract: In Restoring the Lost Constitution, Randy Barnett defends the idea that judges should interpret the U.S. Constitution according to its original public meaning, for in his view the Constitution, rightly understood, satisfies the appropriate normative criterion for determining when a constitution is legitimate and should be followed. As it turns out, however, even if the Constitution did mean what Barnett says it does, it would not meet his criterion of legitimacy, and therefore should not be followed. Moreover, Barnett is just as guilty of reading certain clauses out of the Constitution as are his critics. Given the lack of a persuasive reason to follow the original Constitution consistently, judges must turn to sources of authority other than the Constitution in deciding constitutional cases.

Seeing into Libertarianism | Siegfried van Duffel
Abstract: Non-consequentialist libertarianism usually revolves around the claim that there are only "negative," not "positive," rights. Libertarian negative-rights theories are so patently problematic, though, that it seems that there is a more fundamental notion at work. Some libertarians think this basic idea is freedom or liberty; others, that it is self-ownership. Neither approach is satisfactory.

The Progressive Crusade against Smoking | Ken I. Kersch
Abstract: In his dissection of the 1998 tobacco settlements, W. Kip Viscusi provides a window on how the ostensibly liberal public philosophy behind the modern American regulatory state betrays its foundational commitments. Animated by a moralizing concern with preventing harm to self, and a leftist antagonism towards corporate capitalism, "progressive liberalism" at first foundered in its war against the tobacco industry in the face of traditional liberal counterarguments about individual autonomy, knowledge of risk, and choice. Only when progressive liberals translated their paternalist impulses into science-centered arguments about ignorance and addiction, which involve barriers to autonomous choice and harm to others, did they succeed in turning the legal and regulatory tide against smoking. This dynamic raises questions about the future of individual autonomy in a a science-centered, progressive-liberal modern polity.

Public Ignorance and Judicial Theory: Reply to Somin | Richard A. Posner
Abstract: While pragmatism cannot resolve deep normative disagreements, it can, as a technique of judicial reasoning, at once resolve satisfactorily the majority of cases that do not involve such disagreements, while protecting democracy from overweening judicial assertiveness.

Public Ignorance and Judicial Theory: Rejoinder to Posner | Ilya Somin
Abstract: Posner's "pragmatic" defense of broad judicial deference to legislative power still reflects the shortcomings noted in my review of his Law, Pragmatism, and Democracy. His pragmatism still fails to provide meaningful criteria for decision making that do not collapse into an indeterminate relativism; and his argument that strict constraints on judicial power are required by respect for democracy underestimates the importance of two serious interconnected weaknesses of the modern state: widespread voter ignorance, and interest-group exploitation of that ignorance.

How Deliberative Democracy Can Survive Public Ignorance | Robert B. Talisse
Abstract: Richard Posner and Ilya Somin have recently posed forceful versions of a common objection to deliberative democracy, the Public Ignorance Objection. This objection holds that demonstrably high levels of public ignorance render deliberative democracy practically impossible. But the public-ignorance data show that the public is ignorant in a way that does not necessarily defeat deliberative democracy. Posner and Somin have overestimated the force of the Public Ignorance Objection, so the question of deliberative democracy's practical feasibility is still open.

The Great Liberal-Conservative Shift on Property RIghts | Aviezer Tucker, et al.
Abstract: Philosophical defenses of property regimes can be classified as supporting either a conservative politics of property rights—the political protection of existing property titles—or a radical politics of direct political intervention to redistribute property titles. Traditionally, historical considerations were used to legitimize conservative property-rights politics, while consequentialist arguments led to radical politics. Recently, however, the philosophical legitimations have changed places. Conservatives now point to the beneficial economic consequences of something like the current private-property regime, while radicals justify political redistribution as restitution for historical misappropriations. This shift can be explained by such factors as the failure of state-directed redistributions of property during the twentieth century to benefit the poor. But there are limitations to the usefulness of historical arguments for radicals, and of consequentialist arguments for conservatives: namely, the undeserving poor and the idle rich, respectively.