damnum absque injuria

May 31, 2003

Just Thought I’d Ask

Filed under:   by Xrlq @ 6:08 am

Am I the only one who finds it odd that our nation’s terror alert level has just been lowered to “elevated?”

May 30, 2003

Quote of the Day

Filed under:   by Xrlq @ 9:59 pm

“He’s not weird, he’s Canadian.”

– Sarah Wynter (Kate Warner), discussing Kiefer Sutherland (Jack Bauer).

Link via 24Weblog.

Rights vs. Privileges, Part Deux

Filed under:   by Xrlq @ 12:54 pm

Eugene Volokh questions my observation that a “right” existing at the sufferance of the state is largely illusory. He notes, correctly, that rights (i.e., legal entitlements) can be held against parties other than the state, in which case such rights are genuine indeed. Suppose, for example, that you and I were to enter into a contract, which the California Legislature could nullify by statute at any time. My rights against you, and your rights against me, would both exist at the sufferance of the state, but neither of them would be illusory (assuming, of course, that neither of us has enough political clout to force the Legislature’s hand). If, on the other hand, the contract contained a clause allowing one of the parties
to rescind the contract at any time, the other party’s contractual rights would be illusory indeed. Thus, my original statement probably should have been worded a little more generically:

To the extent that a “right” exists only at the sufferance of the person against whom it is asserted, it scarcely deserves to be called a “right” at all.

That said, I do believe the original quote works in context. People who repeat the DMV mantra that “Driving Is A Privilege Not A Right” are asserting a right of the state, not of private individuals, to curtail the citizenry’s driving rights/privileges. Thus, in this instance, a “right” existing at the sufferance of the state as illusory as anyone’s contractual duty to “perform X if I want to.”

None of this is intended to suggest that a right has to be grounded in the federal (or state) Constitution to be a bona fide “right” against the state. Even a purely statutory right is enforceable against those segments of the state that lack lawmaking power, such as the DMV. As to the state as a whole, however, I don’t think it makes much sense to describe driving as a “right” solely because the 50% + 1 of the Legislators have not yet exercised their right to revoke it. For the word to mean anything of substance beyond that which is also implicit in a “privilege,” severe burdens on driving ought to be at least slighly harder to pass than ordinary legislation, e.g., require a supermajority vote, if they are not prohibited by a separate body of law which the state cannot change at all. A federal “Right to Drive Act” would probably put the debate to rest just as thoroughly as a constitutional amendment would, although there is also a possibilty that such a law would merely shift the focus of the debate to the federal level.

May 29, 2003

Interesting Google Search

Filed under:   by Xrlq @ 11:07 pm

elisha cuthbert ass old school

Rights and Privileges

Filed under:   by Xrlq @ 8:41 pm

Glenn says that Eugene says that the old adage that “driving is a privilege, not a right” is wrong. This becomes largely a matter of semantics, however, as Eugene begins with this general observation:

There is no constitutional right to drive. (One can, I suppose, make arguments in support of such a constitutional right, but I doubt that they’ll work.) The state may, for instance, refuse to issue driver’s licenses to people who are under 25, or who are over 70, or who live in certain areas. In this respect, driving is like a wide range of other activity that is not forbidden by the state, that is in some measure regulated by the state, but that is not constitutionally protected. You do have a right to drive, but it’s a statutorily recognized and regulated right, not a constitutionally secured one.

[Emphasis in original.]

This strikes me as a distinction without a difference. People who chant that the tired DMV slogan that Driving Is A Privilege Not A Right (TM) are not arguing that states can revoke people’s licenses in violation of their own laws, but rather, that the state reserves the right to change the laws and restrict these privileges as it sees fit. To the extent that a “right” exists only at the sufferance of the state itself, it scarcely deserves to be called a “right” at all.

That said, I do believe that it is possible, and also proper, to recognize a “right” to drive even while accepting reasonable regulations on the same. It strikes me as unfathomable that the Founding Fathers Framers would have omitted a “right to drive” from the Bill of Rights if the automobile been invented prior to 1791, or even if such an invention appeared likely in the foreseeable future. After all, what individual right could be more fundamental to one’s liberty than his ability to go where he wants, when he wants? Of course the automobile did not exist then, so it got left off the list, but then again, maybe this is the sort of thing the kind of thing the Ninth Amendment was supposed to catch.

Even if I am wrong on the Ninth Amendment, I understand that courts have, on various occasions, held that the general right to travel is a fundamental “constitutional” right. Granted, driving and traveling are not one and the same, but they are closely related. Until the day comes when public transportation can quickly whisk everyone off from every imaginable Point A to every conceivable Point B, I would be hard pressed to think of any way a state could arbitrarily withhold a person’s “privilege” to drive without also seriously burdening his “right” to travel. So if we’re serious about a “right” to travel, talk of a “privilege” to drive seems inappropriate.

So where does that leave Eugene’s examples of state laws restricting driving by age or site of residence? Well, for starters, I’m not convinced that a state can constitutionally deny a person a driver license on account of where they live within the state. Such an arbitrary provision would be vulnerable to an equal protection challenge under the Fourteenth Amendment, if nothing else. The age restrictions, by contrast, are fine, but how are they different from the age restrictions states impose on citizens’ right (privilege?!) to vote? DUI laws, speed limits, and the like are not inconsistent with constitutional rights, either; after all, even the First Amendment isn’t absolute. So I think the better view is that driving is indeed a right, but one which, like many others, may be reasonably, but not arbitrarily, regulated by the state.

Eugene has responded to my observation that rights existing at the sufference of the state are illusory. I’ve responded to his reply here.

Coming Soon to the Golden State: Yet Another Nanny-Law

Filed under:   by Xrlq @ 7:32 pm

As if the California Legislature didn’t baby its citzens enough already, Assembly Bill 45, which would prohibit the use of cell phones without hands-free devices in cars, has passed the Assembly and is expected to pass the Senate. All this because of a CHP study that purports to link cell phone use to to 611, or 11% percent of the 5,677 collisions caused by inattention factors during the first six months of 2002. Conspicuously absent from the sanctimony surrounding this feel-good measure is any explanation as to how, or even if, a person talking on a hands-free cell phone is supposed to be any less distracted than a person holding a cell phone while he drives.

Glasnost for the L.A. Times

Filed under:   by Xrlq @ 6:42 am

As you’ve probably heard by now, editor Los Angeles Times John Carroll sent a scathing memo to all section editors on May 22, 2003, raising concerns about “the perception – and the occasional reality – that the Times is a liberal, ‘politically correct’ newspaper.” The memo focuses on a front-page “news” item on Texas’s abortion counseling law. Here’s the most damning portion:

Such a person makes no appearance in the story’s lengthy passage about the scientific issue. We do quote one of the sponsors of the bill, noting that he “has a professional background in property management.” Seldom will you read a cheaper shot than this. Why, if this is germane, wouldn’t we point to legislators on the other side who are similarly bereft of scientific credentials?

It is not until the last three paragraphs of the story that we finally surface a professor of biology and endocrinology who believes the abortion/cancer connection is valid. But do we quote him as to why he believes this? No. We quote his political views.

Apparently the scientific argument for the anti-abortion side is so absurd that we don’t need to waste our readers’ time with it.

[Emphasis added.]

Read the whole thing. They say that recognizing the problem is the first step on the road to recovery; may many more such steps follow.

Link via Calblog.

May 24, 2003

Metal Detectors Can’t Catch Everything

Filed under:   by Xrlq @ 11:18 pm

Mrs. Xrlq and I are boarding a plane for Columbus tomorrow, so stories like this one do not exactly inspire confidence. I don’t anticipate having Internet access during the trip, so expect little to no blogging between now and the weekend.

May 23, 2003

Arte Moreno’s Contribution to Baseball

Filed under:   by Xrlq @ 10:35 am

The Angels may not be in any danger of repeating last year’s performance, but at least it will be cheaper to drown your sorrows if they don’t.

May 22, 2003

Eugene Volokh, Closet Gun Control Supporter?

Filed under:   by Xrlq @ 8:58 pm

I’ve blogged a lot about gun control in the recent past, and have also blogged about the bias of L.A.’s premire legal newspaper, the Los Angeles Daily Urinal Journal [whose articles frequently overlap with those of its sister publication, the San Francisco Daily Journal], in the more distant past. This entry combines the two themes; the only thing missing was for Jennifer Reisch and/or her attorney, The Insufferable Laura Stevens, to get involved in the debate. The article at issue ran in the May 9, 2003 edition of the Daily Journal, and concerned the case of Maxfield v. Bryco Arms, a politically motivated anti-gun lawsuit brought on behalf of Brandon Maxfield, a paraplegic teenager, against Bryco Arms, a Costa Mesa firearms manufacturer.

Like most of the other tort lawsuits brought against firearms manufacturers, Maxfield concerned not a genuine manufacturing defect, but a creative theory alleging a design defect based on but-for reasoning: if the gun had had a chamber indicator and been designed to allow a person to unload it without disengaging the safety, the idiot babysitter charged with caring for Maxfield, William Moreford, might not have shot Maxfield. Unlike the lion’s share of these cases, however, Maxfield actually prevailed, and got hit with a $51 million verdict.

Now we get to the part where the Daily Journal utterly blows it: quoting Eugene Volokh. Here is everthing the Daily Journal had to say about Professor Volokh (the middle paragraph does not relate to Prof. Volokh but has been left in to avoid the appearance of my having yanked anything out of context):

Professor Eugene Volokh, who teaches a firearms regulation seminar at the UCLA School of Law, said [H.R. 1036] would allow general product liabiltiy claims but could disallow a case with the specifics of Maxwell because the shooter could have been charged with criminal negligence.

No industry has ever tried to get such sweeping immunity,” said [attorney Daniel] Vice, whose organization [the Brady Center to Prevent Handgun Violence, f/k/a Coalition to Prevent Handgun Violence f/k/a National Coalition to Ban Handguns] opposes the legislation.

The bill as written provides several exceptions and would expressly allow state and federal firearms regulations to take precedence, Volokh said. He generally supports statutory, rather than judicial, firearms control, he added. “The law is just clearer and fairer.”

[Emphasis added.]

Suppose you knew nothing about Professor Volokh’s extensive research on gun control. Going on nothing except what you just read from the Daily Journal, what would you assume about his general views on gun control?


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