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Abstract:
Although it is a well-established scientific fact, evolution remains a controversial subject in the United States, and especially the issue of teaching evolution or creationism in public schools. An argument that appears to be increasingly popular among creationists is based on a postmodernist notion that science is simply one among many different but equal "ways of knowing," and that its ascendancy over other methods is due to conflicts between social power structures rather than any objective superiority. Several creationist writers have argued that science's exclusive reliance on natural causes (so called "methodological naturalism") is an a priori assumption, or an arbitrary preference, and therefore that both it and religion are equally valid epistemologies. In addition, they argue that the Establishment and Free Exercise Clauses of the First Amendment prohibit government from endorsing or granting "preferences" to science over supernaturalism.

This article is a response to these theories. In Part I, I argue that science is an objectively superior means of knowing, and that methodological naturalism is not an a priori assumption, but both an a posteriori preference and one that is necessary for any valid epistemology. I also reject the argument that naturalism or "humanism" are "religions" or that science requires a "leap of faith." In Part II, I address whether the First Amendment requires the government to remain "neutral" between supernatural and naturalistic worldviews. I conclude with some general observations on the conflict between science and supernaturalism.

evolution, creationism, education, stephen w. trask, methodological naturalism, science

Abstract:
Plea bargaining, like all government activities, is liable to abuse. Yet the mere fact that a process can be abused does not necessarily make that process unconstitutional, or immoral. Plea bargaining is rife with unfair prosecutorial tactics, and it needs reform. But the process itself is not unconstitutional, nor does it violate a defendant's rights.

Plea bargaining, fifth amendment, sixth amendment, constitutional law, plea bargain, criminal law, right to trial

Abstract:
The Supreme Court's decision in the eminent domain case of Kelo v. New London was greeted with anger and frustration. The public outcry reaction came to be called the "Kelo backlash," and news reports and editorials declared throughout the fall of 2005 that this backlash was leading to statutory reforms in many state legislatures. Following Justice Stevens' suggestion in the Kelo opinion that states could provide greater protection for property owners than the federal courts provided, and recognizing that some state courts had imposed stricter limits on eminent domain through the "public use" requirements in state constitutions, activists and legislators in dozens of states began working on changing state laws regarding property seizure.

So far, the backlash has produced mixed results. In the year since the Kelo decision was announced, 24 states have passed new legislation regarding eminent domain. Unfortunately, 16 of these new laws provide little protection for property owners. Proposals in other states, including two brought forward in the California Legislature, even appear to have been consciously designed to effect no meaningful change. On the other hand, new laws in South Dakota, Indiana, Georgia, Pennsylvania, and Minnesota, as well as bills in some other states, give reason to hope that residents of other states will receive meaningful protection from the abuse of eminent domain. But would-be reformers must resist the pressure to include loopholes and exceptions that have so severely weakened many new reform laws.

In this article, I survey the 24 new laws, as well as proposals that were shot down by the Legislature of California, and the governors of Arizona, New Mexico, and Iowa. I will explore what makes the new laws in South Dakota and other states so effective, and what renders other state laws hollow promises. After a brief background on eminent domain after Kelo, and the public reactions to that decision, I explore each bill in sequence. I conclude with some observations as to the two biggest obstacles faced by reformers: the political influence of powerful redevelopment proponents, and the lack of serious philosophical support for reform.

eminent domain, kelo, public use, redevelopment

Abstract:
According to many libertarians, the Union's victory in the Civil War represented a betrayal of American Constitution and of the fundamental principles of American political philosophy. These writers contend that secession is a legitimate, constitutional action under the Constitution and that, despite the evil nature of slavery, the federal government had no authority to prevent the southern states from leaving the union. In this paper, I contend that this argument is deeply flawed, and rests on a confusion between secession (a purportedly constitutional act) and revolution (an exercise of coercive force considered legitimate in libertarian political theory only when engaged in as a form self-defense). To counter this confusion, I propose a systematic, two-step analysis: first, does a state have the legal authority under the United States Constitution, to secede unilaterally? And, second, if secession is unconstitutional, was the Confederacy's action in 1861 justified as an act of revolution? I contend that the answer to both questions is no.

Civil war, secession, libertarianism, slavery, paleo-conservatism, sovereignty, state's rights

Abstract:
Liberal originalism is a theory of constitutional interpretation which holds that the Constitution should be interpreted through the lens of the Declaration of Independence and that the Declaration is itself part of the organic law of the United States. Liberal originalism contrasts with the conservative originalism of scholars who view the Declaration as having no legal significance. This article examines liberal originalism, keeping a general focus on the essays in Scott Gerber's book Declaration of Independence: Origins And Impact. It offers some reflections on the liberal originalist project in general, some of the objections to liberal originalism, and the ways in which a liberal originalist interpretation of the Constitution would differ from current interpretive theories.

Liberal originalism, Scott Douglas Gerber, Declaration of Independence, Locke, Jefferson, natural rights, natural law, classical liberalism, Robert Bork, Harry Jaffa

Abstract:
Remarkably little attention has been paid to the role natural rights theory plays in understanding eminent domain. This article presents a historical review of the public use requirement, particularly its underpinnings in political philosophy, before turning to current public use theory and specifically the history of California's Constitutions. The article then focuses on the debates at the second California Constitutional Convention before moving on to the development in case law leading up to 1954, when courts announced the current theory of the Public Use Clause. This review demonstrates that the history of the Public Use Clause does not support the current interpretation, which permits takings on the basis of any conceivable public benefit. Reviving careful scrutiny under the Public Use Clause is increasingly necessary to provide real protection for the discrete and insular minorities who are generally on the business end of condemnations.

Condemnation, Public Use Clause, eminent domain

Abstract:
Ayn Rand viewed copyrights and patents as natural rights that were secured by legislation, rather than as monopoly privileges that were created by the state. Other Objectivist writers have followed suit. This article disputes this thesis on the grounds that it fails to recognize the distinction between the right to use and the right to exclude, the latter of which cannot be justified with regard to intellectual property on Objectivist premises. In addition, the article discusses three significant objections to the natural-rights interpretation of copyright that Objectivist authors have failed so far adequately to address.

Ayn Rand, Objectivism, copyright, natural right copyright, patent, labor theory natural copyright, Adam Mossoff, Eric Daniels

Abstract:
Once considered dead letter, the public use clause of the Fifth Amendment has once again become the subject of serious legal contention. With the Supreme Court's consideration of Kelo v. New London, the public has learned that there is a serious crisis in eminent domain law: governments are regularly seizing private property for the benefit of private groups for their own private profit. Part I of this paper explains that, although the public use limitation was intended to prohibit such redistribution, courts have drifted from that original understanding since the Populist Era. Part II addresses the most important problem the legal community faces in returning to a proper understanding of the limits of eminent domain - namely, the attempt to avoid the difficult question of legitimate state interests. Part III proposes an important opportunity to limit eminent domain through state constitutions.

eminent domain, public use, kelo v. new london, poletown, wayne county v. hathcock, legitimate state interests, california constitutional convention

Abstract:
The debate over judicial activism is nothing new, but recent years have seen the debate becoming increasingly bitter. In The Myth of Judicial Activism, Professor Kermit Roosevelt tries to provide a more levelheaded assessment of the judiciary's role. But his approach - which largely adopts the consensus of the legal establishment - suffers from a fundamental flaw: like Judge Robert Bork and Justice Steven Breyer before him, Roosevelt centers his jurisprudence around preserving democratic decisionmaking, rather than protecting liberty. This basic error renders this approach incompatible with the constitutional design, and distracts all of these thinkers from the more fundamental philosophical issues that lie at the heart of the judicial activism debate. This article uses Roosevelt's book as a point of departure for a more general discussion over the judiciary's role in preserving the fundamental constitutional value of liberty, and explains why focusing on democracy rather than liberty leads to erroneous conclusions.

judiciary, judicial acivism, constitution, jurisprudence

Abstract:
In Kelo v. New London, the United States Supreme Court allowed state officials to seize homes and businesses and transfer the property to private owners for development, even though the Constitution declares that government may only take property "for public use."

Kelo was greeted with popular outrage and calls for political reform. But few commentators have discussed the fact that it represents a fundamental change in American political philosophy. In 1829, the Supreme Court said that "a legislative act to transfer the property of A. to B. without his consent" had been "resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced." But by 1978, the Court held that the Constitution does not require compensation when a person's property is taken for "some public program adjusting the benefits and burdens of economic life to promote the common good," and in Kelo, the Court held: "Promoting economic development is a traditional and long accepted function of government."

In this article, I explore the political philosophy underlying this change. I begin with the influence of John Locke, Thomas Hobbes, and William Blackstone on early American courts, and how these courts were divided regarding the boundaries on state power. I then describe the abandonment of Lockean philosophy during the Progressive era, and conclude with a discussion of how this debate is reflected in Kelo and its dissents, and how addressing eminent domain in the wake of Kelo requires philosophical as well as political change.

eminent domain, kelo, property rights

Abstract:
The Supreme Court's recent decision in Flamingo Industries v. USPS extended government's immunity from the antitrust laws to an essentially private enterprise operating under the auspices of the Federal Government. That decision undermines the very purpose of the Sherman Antitrust Act, shielding from review precisely those monopolies that the Sherman Act's framers sought to target. This paper discusses the origins of the Sherman Act and the decisions protecting enterprises run by government in its market-participant capacity. It concludes that when government acts as a market participant, rather than as a regulator, it ought to be subject to the Sherman Act, and that Flamingo Industries was wrongly decided.

Sherman Act, Flamingo Industries, Postal Service, USPS, Post Office, Antitrust, Economic Liberty

Abstract:
When is the developer or distributor of a copying technology legally responsible for the copyright infringements committed by users of that technology? Over the past twenty years or so, development and deployment of digital copying technologies (personal computers, CD and DVD burners, iPods and other portable music devices, the Internet itself, etc.), and tools for Internet file sharing and file distribution, have thrust that question into the center of a high-profile public debate. That debate gave rise to the most closely watched copyright case of recent years, MGMStudios Inc. v. Grokster, Ltd. The Ninth Circuit Court of Appeals had held that defendants Grokster and StreamCast, the developers and distributors of peer-to-peer file-sharing software, were shielded from copyright liability by the so-called Sony doctrine (also called the Betamax case), interpreting that doctrine to mean that distributors of copying technology that is capable of commercially significant noninfringing use are shielded from liability for the infringement committed by users of the technology, unless the distributors had specific knowledge of infringement obtained at a time at which they contributed to the infringement and had failed to act upon that information. The Supreme Court unanimously reversed, holding that because Grokster and StreamCast had distributed their software with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, Sony did not protect them from liability, whether or not their software was capable of commercially significant noninfringing use. The unanimous decision in the copyright holders' favor is, obviously, a big loss for Grokster Inc. and StreamCast, Ltd.; its broader implications for Internet file-sharing practices and file-sharing technology, however, are much less clear; to try to understand what they might be, we rewind the tape, back to Sony in 1984 . . .

internet, peer-to-peer filesharing, copyright, intermediary liability

Abstract:
This is a review of Henry Mark Holzer's The Supreme Court Opinions of Clarence Thomas. I contend that Holzer's book ignores significant debates within the conservative/libertarian community. I describe some of these debates - over the role of natural rights, the proper understanding of federalism, and the meaning of originalism - to determine how Justice Thomas' record compares to a freedom-centered interpretation of the Constitution.

Clarence Thomas, Henry Mark Holzer, libertarianism, liberal originalism, natural rights

Abstract:
In Restoring 'The Lost Constitution', Randy Barnett makes two main arguments: (1) that the legitimacy of a Constitution does not hinge on the consent of the governed, but on the degree to which the government respects the rights of the non-consenting; (2) that a constitutional theory should presume in favor of liberty, requiring advocates of government intervention to justify their position. (Current law holds the opposite, requiring those challenging the constitutionality of a law to bear the burden of proving its unconstitutionality.)

Although Barnett makes compelling arguments for his theses, they could be supported more strongly by legal history than he seems to be aware. Specifically, I argue that the debate between the current presumption in favor of government, and Barnett's presumption of liberty, can be traced to the difference between the Lockean ideas of the founders and the ideas of William Blackstone, which gained popularity during the nineteenth century.

Randy E. Barnett, Barnett, Restoring The Lost Constitution, sovereignty, Blackstone, limited government, substantive due process, Calder, Sharpless, Billings

Abstract:
The Michigan Supreme Court's decision in Wayne County v. Hathcock overruling Poletown Neighborhood Council v. Detroit represents a major victory for property owners across America. Poletown greatly broadened the scope of the eminent domain power, enabling government to seize land for the benefit of private corporations instead of for the public use[s] referred to in the state Constitution. Since then, many state and federal courts embraced similar ideology, holding that any use the Legislature declared a public benefit qualified as a public use. This unleashed a rash of broad scope condemnations at the expense of property owners. The Hathcock court's decision sends a clear message that this abuse of eminent domain must be stopped and challenges victims of eminent domain abuse to fight back, despite powerful private interest obstacles. This article discusses the background and importance of Hathcock and some of the important matters that must be addressed to further rein in the extreme government power of eminent domain.

poletown, wayne county v. hathcock, eminent domain, public use, condemnation, takings, general motors, kelo

Abstract:
In Kelo v. New London, the United States Supreme Court held that the Fifth Amendment does not forbid states from using eminent domain to condemn homes and businesses and transfer the property to private parties to use for their own profit. But the Court acknowledged that state constitutions can provide greater protection for property owners than does the federal Constitution. Michigan's Supreme Court has already held that that state's Constitution forbids such takings because they are not for public use. Washington and Arizona also have constitutional provisions specifically forbidding takings for private use. But even where a state constitution's language is identical to the federal Constitution, it may have a different meaning, given that state's unique history and legal development.

In this article, I argue that the Texas Constitution forbids Kelo-style takings for economic development. I examine the records of the state's several constitutional conventions as well as the development of case law over the history of the state. Until the 1940s, the state observed a strict prohibition on condemnations that benefited private parties. Then, in two cases riddled with fundamental legal errors, the Texas Supreme Court adopted a more expansive interpretation of public use. In addition to exposing the errors of these cases, I explain why they still do not authorize the use of eminent domain for economic development in Texas.

Kelo, eminent domain, property rights, public use

Abstract:
For most people, economic opportunity defines "the American Dream." Yet many legal barriers interfere with the right to earn a living. Although these regulations are promulgated in the name of public safety and welfare, they often protect, not the public, but the private interest of established firms seeking to prevent competition from entrepreneurs. Occupational licensing laws, for example, sometimes accomplish no public safety objective, but merely prevent competition within a trade. Under the rational basis test, courts have on rare occasions, struck down such laws. For example, in Schware v. Bd. of Examiners, the Supreme Court held that under the Due Process Clause, occupational licensing requirements must have some "rational connection with the applicant's fitness or capacity to practice" the profession. This is consistent with the Court's repeated holding that the Due Process and Equal Protection Clauses require laws to have some public justification, rather than being based on mere animus, or the desire to benefit a particular constituency.

In four recent cases, federal courts have been confronted with the issue of whether regulations designed for no other purpose than to protect political insiders from fair economic competition meet the standards of the Fourteenth Amendment. In Powers v. Harris, the Tenth Circuit upheld an occupational licensing requirement even while acknowledging that it was solely intended to protect established companies against competition, on the grounds that "intrastate economic protectionism constitutes a legitimate state interest." Shortly afterwards, in Sagana v. Tenorio, the Ninth Circuit upheld explicitly discriminatory labor laws on the grounds that protecting some laborers against competition from others is a legitimate state interest. Two recent trial court decisions explore these themes further by evaluating the constitutionality of occupational licensing laws that lack any serious public-regarding justification.

In this article, I use these four cases to explain why mere economic protectionism is not a legitimate state interest, and why courts must revive the Constitution's limits on government's ability to grant pure political favors to economic interest groups.

Economic protectionism, right to earn a living, Fourteenth Amendment, Due Process Clause, Equal Protection Clause, Powers v. Harris, Sagana v. Tenorio, legitimate state interest

Abstract:
Testimony provided to the California State Senate Committee on Local Government on eminent domain in California in the wake of Kelo v. New London, and on how to remedy the problem of eminent domain abuse in California.

Kelo, eminent domain, California, redevelopment, takings, Sandefur

Abstract:
Produced for a conference by the Claremont Institute commemmorating the 150th Anniversary of California statehood, this article explores the jurisprudential philosophy of one of California's great jurists, Supreme Court Justice Stephen Field. From his decisions dealing with property rights, government regulation, and Chinese exclusion statutes, Justice Field consistently demonstrated a deep understanding of the natural law principles that provide the foundation of legitimacy for republican government.

Stephen Field, Slaughterhouse, Natural Law, Constitution, Supreme Court, California History

Abstract:
For decades, landowners in Oregon have suffered under one of the most restrictive land-use regimes in the nation. Among the many ills this system fostered was a failure to compensate owners when land use restrictions resulted in a diminution of the value of their property. Property owners seeking judicial enforcement of their constitutional right to be compensated found no such protection. Therefore, in 2004 the voters of Oregon took it upon themselves to enact Measure 37, an initiative requiring state and local governments to compensate landowners where land use regulations result in decreased property values. Incredibly, an Oregon circuit judge struck down Measure 37 in October, claiming among other things that the people of Oregon had no right to limit the powers of their elected officials.

This Article examines the events that led to, and resulted from, Oregon's enactment of Measure 37. In particular, it looks at the theory behind the doctrine of regulatory takings, advocating the position that governments can take property without physically occupying it. With this theoretical baseline in place, the Article recounts the regulatory nightmare that is Oregon's land use apparatus, and recounts the steps that led the state's voters to finally do something about it in the form of Measure 37. Finally, the Article concludes by critiquing the unfortunate decision invalidating Measure 37, with emphasis on the court's argument that citizens are powerless to limit the authority of their own legislature.

land use, property rights, takings, Measure 37, decreased property values

Abstract:
On July 1, 2003, Nevada Governor Kenny Guinn filed a remarkable lawsuit. He asked the state supreme court to issue a writ of mandamus ordering the state legislature to pass a budget which had failed to garner the constitutionally required two-thirds vote in the State Assembly. As one of the lead attorneys for the Pacific Legal Foundation's amicus curiae participation in the Guinn case, I had a unique perspective on this legal controversy, and on the fundamental issues of American law which were involved, including one of the forgotten provisions of the United States Constitution: the Republican Guarantee Clause. This article examines the facts of Guinn v. Legislature of Nevada and related litigation, explains how the Nevada Supreme Court violated the Guarantee Clause, and explores the future constitutional implications of this unusual case.

Republican Guarantee Clause, Guinn, state budget

Abstract:
There appears to be considerable confusion among the bar and on the bench as to when a plaintiff may or may not file a lawsuit challenging the facial constitutionality of a law. Many practitioners and judges have come to the erroneous conclusion that facial challenges to the validity of laws must be filed within a certain time frame after the challenged law is enacted, or risk being barred by the statute of limitations. This error - which springs largely from a confusion with regulatory takings law - has not only led courts to dismiss valid facial arguments as timely, but has also led them to take the mistaken position that statutes of limitations do not apply at all to First Amendment cases, or to misconstrue past cases in which laws were found facially invalid as being as-applied challenges. Worst of all, many practitioners are under the misimpression that a facial challenge is time barred one or two years after the challenged statute is enacted. This is not correct.

This article attempts to separate out the different conceptual categories whose overlap has led to such mistakes. In brief, the facial/as-applied distinction has nothing to do with the accrual or the ripeness of a cause of action. Because the accrual date of facial and as-applied challenges are identical (with some specific exceptions), mere enactment is rarely if ever the moment when a facial challenge accrues. The distinction between facial and as-applied challenges is a way of characterizing the merits of a constitutional challenge, but it has no relation to jurisdictional questions such as accrual, ripeness, or statutes of limitations. A plaintiff may challenge a law's validity at any time with the limitations period after that law has injured her, whether she chooses to argue that the law is facially unconstitutional or only unconstitutional as applied in her case.

facial challenge, as-applied challenge, statute of limitations, ripeness, time barred

Abstract:
In this paper I criticize certain aspects of the Hayekian distinction between "spontaneous" and "constructed" orders. While I contend that the distinction is useful as a descriptive matter, it cannot serve as a normative guide because the distinction depends entirely on the observer's frame of reference. In practice, the antirationalist premises behind Hayek's prescriptions against constructed order make it impossible either to recognize injustice or to correct it without engaging in "rational constructivism."

F.A. Hayek, spontaneous order, constructed order, rationalism, Burke, conservatism, libertarianism

Abstract:
In 1953, the Baton Rouge bus boycott created a model of organization Dr. Martin Luther King, Jr., and the Montgomery Improvement Association so successfully used two years later in Montgomery. But these boycotts were not just about segregated buses, and their organization reveals a lesson about economic regulations which has yet to be learned today. Like much of the history of racial conflict in America, segregation involved a complex mixture of law and social organization. One obstacle faced by both boycotts was that drivers who provided alternative transportation for the protestors could not charge for rides. Taxicab regulations in both cities proved a powerful tool in the hands of segregationists. Unfortunately, such regulations continue to profoundly affect our society today. This paper explores some of the racial and economic implications of transportation regulations, keeping in mind the law's power to create and manipulate economic relationships and the profound effect it has on civil rights and the pursuit of happiness.

Segregation, bus boycott, economic regulation, civil rights

Abstract:
This article explores the original understanding of the Constitution's division of power between the President and the Senate with respect to judicial appointments. The President is given the sole power to nominate, and the primary role in appointment, while the Senate was understood as having a much more limited role, serving as a check on the President to prevent appointments for political favor, family connection, etc. What the founders did not envision was a co-equal role for the Senate--that would have undermined the kind of accountability that comes from assigning the principal role to a single individual: the President. And they particularly did not envision a minority of the Senate, using the filibuster, to impose an ideological litmus test on the President's nominees even for nominees who enjoyed the support by a majority of Senators.

Judicial Confirmations, Constitution, Filibuster, Appointment Power

Abstract:
Equal protection cases routinely distinguish between suspect and nonsuspect classifications. Because nonsuspect classifications are scrutinized under the forgiving rational basis test, government regulations of economic activity are usually upheld even in highly questionable circumstances. But several recent decisions in federal courts - involving enterprises as diverse as barber shops and shoe shining - suggest a need to reexamine twentieth century assumptions about equal rights.

This article argues that the values protected by the Equal Protection Clause require a more meaningful judicial review of economic regulations and addresses the shortcomings of recent criticisms of applying this meaningful scrutiny.

rational basis, economic liberty, craigmiles v. giles, powers v. harris, lochner, brown v. barry, economic freedom, slaughterhouse cases

Abstract:
This article tells the story of Charles V. Stuart, delegate to the California Constitutional Convention of 1878-79, the only member of the Convention who spoke up in defense of the Chinese immigrants who were working in the state's mines and fields. Stuart, who led the first mule train to California in 1849, was the founder of the town of Glen Ellen, California, and today is little remembered for his courageous stand against bigotry at the state's second constitutional convention

California Constitutional Convention, Chinese-Americans, Charles V. Stuart

Abstract:
Several recent cases have endorsed and broadened the legality of state efforts to protect in-state industries from interstate competition. These rulings endanger the continued viability of the rule of law. The expansion of these laws threatens to transform representative government from a forum in which competing views of the public good are deliberated and resolved, into a private auction of opportunities and monopolies to those interest groups capable of bidding.

State industries, interstate competition, rule of law, monopolies, protectionism, wealth of nations, rent-seeking, free market

Abstract:
This is an updated bibliography of publications by the mathematician and author Jacob Bronowski (1908-1974), based on an earlier bibliography that appeared in Leonardo 18(4) (1985): 282-297. This revised version contains references to several papers and articles left out of the Leonardo bibliography, as well as some corrections to minor errors in the original, but lists only published writings, and not audio or video recordings. It is subject to updating as further research warrants.

J. Bronowski