The February 2008 issue of the Stanford Law Review contains the following articles by Georgetown Law Professors Sasha Volokh, Randy Barnett and Neal Katyal (writing with Richard Caplan):
- Randy E. Barnett, Kurt Lash’s Majoritarian Difficulty: A Response to A Textual-Historical Theory of the Ninth Amendment, 60 Stan. L. Rev. 937 (2008).
Kurt Lash believes that, in addition to individual natural rights, the Ninth Amendment protects collective or majoritarian rights as well. In this essay I explain why his majoritarian vision is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, and those who wrote the Constitution. Not coincidentally, it is contrary to the individualism of the other amendments in the Bill of Rights, and to the public meaning of the Ninth Amendment as it was received during its ratification. It is also contrary to the individualist conception of popular sovereignty adopted in the text of the Constitution as interpreted by a four-to-one majority of the Supreme Court in its first major constitutional decision. And it is contrary to the individualist interpretation of the Ninth Amendment by the one source he cites who actually uses the word “collective”: St. George Tucker. In sum, the collectivist interpretation of the phrase “others retained by the people” is anachronistic–a projection of contemporary majoritarianism onto a text that is and was most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.
- Neal Katyal &amp; Richard Caplan, The Suprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, 60 Stan. L. Rev. 1023 (2008).
This Article explains why the legal case for the recently disclosed National Security Agency surveillance program turns out to be stronger than what the Administration has advanced. In defending its action, the Administration overlooked the details surrounding one of the most important periods of presidentially imposed surveillance in wartime – President Franklin Delano Roosevelt’s wiretapping and his secret end-run around both the wiretapping prohibition enacted by Congress and decisions of the United States Supreme Court. As explored through primary source material, President Roosevelt acted against the interpretations of, among others, his Attorney General and the Supreme Court regarding a law passed by Congress, deciding, in secret, that wiretapping was essentially his prerogative. That Attorney General, Robert Jackson, later remarked that it was “[t]he only case that I recall in which [FDR] declined to abide by a decision of the Supreme Court.”
The FDR precedent provides some justification for what is known about President Bush’s wiretapping program – more, it would seem, than what has been put forward by the Administration itself. By outlining some of the general conditions under which Executive Branch precedent may justify contemporary national security decisions, we develop a framework for Executive Branch stare decisis and ultimately conclude that the FDR precedent should not be followed today. We recognize, however, that our conclusion is debatable, and believe that the FDR precedent deserves widespread debate, instead of the inattention it has received thus far. We further explain why the past history and present experience with wiretapping reveals the relative frailty of both courts and Congress in national security disputes, and highlights the need to lace the concept of separation of powers into the Executive Branch.
- Alexander Volokh, Privatization and the Law and Economics of Political Advocacy, 60 Stan. L. Rev. 1197 (2008).
A common argument against privatization is that private providers will self-interestedly lobby to increase the size of their market. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating for incarceration.
I conclude that there is at present no particular reason to credit this argument. Even without privatization, government agents already lobby for changes in substantive law – in the prison context, for example, public corrections officer unions are active advocates of pro-incarceration policy. Against this background, adding the extra voice of the private sector will not necessarily increase either the amount of industry-increasing advocacy or its effectiveness. In fact, privatization may well reduce the industry’s political power: Because advocacy is a public good for the industry, as the number of independent actors increases, the largest actor’s advocacy decreases (since it no longer captures the full benefit of its advocacy) and the smaller actors free-ride off the largest actor’s contribution. Under some plausible assumptions, therefore, privatization may actually decrease advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.
The argument that privatization distorts policy by encouraging lobbying is thus unconvincing without a fuller explanation of the mechanics of advocacy.