On Whether Women Should Change Their Last Names Upon Marriage

In the debate over whether married women should change their last names, no one mentions the effects that our practices here will have on future would-be genealogists.

I've spent a good bit of time trying to research who my ancestors were. It can be quite difficult to do so, but at least you can count on people having followed the rule that women changed their last name to their husbands upon marriage. The rule could have been the other way around, with men changing their last names. What matters is that 1) families had the same name, and 2) the rule was predictable.

These days, though, things are not predictable. There are numerous possibilities:

• 1. The woman changes her last name;
  
• 2. The man changes his last name;
  
• 3. The man and woman hyphenate, in no particular order;
  
• 4. The man and woman turn one of the last names into a middle name, in no particular order;
  
• 5. The man and woman each keep their own name;
  
• 6. The man and woman create a brand new last name.

Rules 1 and 2 are by far the best; and neither of them is better than the other. (Rule 1 is preferable only because it's more predictable; that's how things have always been done. If society could en masse switch to Rule 2, that would be equivalent to future genealogists.)

Rules 3 and 4 are bad, because any couple who combines last names makes it a virtual certainty that their descendants will follow a different rule when they get married someday. (One can't have a string of 4 or 8 last names, after all.) Rules 3 and 4 therefore fail to be predictable. Rule 5 is fine for the couple themselves, but it creates difficulties as to what the children will be called (again, unpredictability rears its head), and it makes it more difficult for future genealogists to figure out whether these two people had anything to do with each other. Rule 6 at least creates a family with the same last name, but it creates a sharp, unpredictable, and possibly unbridgeable break with all prior generations of both families.

Supreme Court information

Via Howard Bashman, an interesting article about the testimony of Justices Thomas and Kennedy before a congressional budget committee: :

A cordial hearing about the Supreme Court budget grew testy when lawmakers pointed to the vast amount of information they provide about Congress' doings and said the nation's highest court could and should do the same.

Justice Anthony M. Kennedy protested that the court is making more information about cases available through its Web site, but Rep. Frank Wolf, R-Va., seemed unimpressed.

'I think the court is a little bit aloof,' he said.

Kennedy and Justice Clarence Thomas seemed taken aback, and hurriedly listed ways the court tries to tell the public what it is up to.
The court makes available a transcript of its oral arguments about a week after it hears oral arguments in a case, Kennedy noted.

Congress does that overnight, Wolf replied.

Some of the legal briefs for the court's cases are available online, Kennedy said.

Not everyone has a computer, Wolf answered. He sends his constituents a letter detailing his votes.

Well, that settles it, then. Clearly the Supreme Court has been negligent in failing to send out paper copies of briefs and opinions to all of its constituents (which would have to be all Americans). There are about 8,000 cert. petitions filed per year (with at least two briefs apiece), 80 or so cases on the merits (I'd guess an average of 5 briefs apiece, including the petitioner, respondent, and any amici), plus the opinions themselves, all of which should be mailed to 280 million Americans. That would amount to a mere 4.6 trillion mailings per year. Why, Justice Stevens' clerks could handle that in their spare time.

Background music

Turns out that Sasha Volokh works while listening to the Tallis Scholars' 2-CD set titled The Best of the Renaissance. Coincidently, that is the exact same 2-CD set that I bought a few weeks ago, and have since enjoyed listening to while working. It features excellent renditions of works by Josquin and Palestrina (as one would expect), as well as a few works by lesser composers, such as Taverner and the famously chromatic Gesualdo.

Seventh Circuit Campaign Finance Decision

Via Howard Bashman, I see that the Seventh Circuit has issued a decision upholding an Indiana campaign finance law forbidding anonymous advertisements. The opinion is by Posner. Easterbrook filed an opinion that isn't a concurrence, yet isn't a dissent either. It is simply labeled: "Easterbrook, Circuit Judge, dubitante." I have to admit I've never seen that particular label before. What Easterbrook does is lay out his doubts about the Supreme Court's campaign finance jurisprudence, without actually dissenting.

And does he ever have some doubts. Here are some notable quotes (be sure to catch the last line):

Four decisions of the Supreme Court hold or strongly imply that the ability to speak anonymously—and thus with less concern for repercussions— is part of the “freedom of speech” protected by the first amendment against governmental interference. Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995); Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 199-200 (1999); Watchtower Bible & Tract Society of New York, Inc. v. Stratton, 536 U.S. 150, 166-67 (2002).
* * *
Although the scope of protected speech has been held to differ across subject matter, the ability to denounce public officials by name and call for their ouster is the core of the Constitution’s protection.
* * *
Today the court holds that a state may require persons engaged in core political speech to identify themselves so that the officeholders and their allies can pinpoint their critics. How can this be?

According to my colleagues, the answer lies in the fact that McConnell v. Federal Election Commission, 124 S. Ct. 619, 689-94 (2003), rejected a constitutional challenge to §201 of the Bipartisan Campaign Reform Act of 2002, which amended §304 of the Federal Election Campaign Act, 2 U.S.C. §434. Section 304 as amended requires any person who makes disbursements exceeding $10,000 in any year for speech in federal campaigns, or who donates $1,000 or more to another person or group engaged in advocacy, to disclose his identity to the Federal Election Commission. Indiana’s law differs—it starts from a lower threshold (100 sheets of paper) and requires disclosure to the public in the electioneering literature rather than to an agency . . . —but once it is settled that speakers must reveal their identities directly to the political establishment, five Justices may think that everything else is mere detail.

Still, the Justices’ failure to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply.
* * *
The Supreme Court wrote that §304 is valid because it is (in the view of five Justices) a wise balance among competing interests. Yet the function of the first amendment is to put the regulation of speech off limits to government even if regulation is deemed wise. . . . For the judiciary to say that a law is valid to the extent that it is good is to operate as a council of revision and to deny the power of a written constitution to constrain contemporary legislation supported by the social class from which judges are drawn. And when, as in McConnell, the judgment is supported by a one-vote margin, any Justice’s conclusion that a particular extension is unwise will reverse the constitutional outcome. How can legislators or the judges of other courts determine what is apt to tip the balance?
* * *
Often the Supreme Court says that even a small fee or tax, or a short delay in obtaining a free license (as in Watchtower), is an unacceptable burden on speech. . . . Yet in McConnell the Court was sanguine about the delays, and non-trivial legal expenses, entailed in complying with complex rules for campaign speech. These outlays come on top of the costs that must be borne by persons who back the wrong horse and incur the enmity of elected officials—for the winners now are entitled to learn all of their vocal opponents’ identities. Maybe these effects can be justified with respect to electioneering at the national level by deep-pocket interest groups—though I think that the Justices have been too ready to equate political support to bribery, see Ronald A. Cass, Money, Power, and Politics: Governance Models and Campaign Finance Regulation, 6 Sup. Ct. Econ. Rev. 1 (1998)—but for local elections the equation is impossible to sustain.
* * *
Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along. But I also do not understand how that position can be reconciled with established principles of constitutional law.

Academia vs. Manual Labor

I was bemused by this article in the Chronicle:

In these pages, I have occasionally seen other articles by faculty members who find the academic life too stressful -- a point of view I find absurd.

As a college student, I worked five days a week in a factory in the summers and delivered parcels for the Postal Service at Christmas. That work was stressful. I also spent a full day down a coal mine, being choked by dust and trying to avoid having my legs gashed by the speeding conveyer belts. That was truly hell. Compared to lives in those jobs, academe is a good place to work.
* * *
I am puzzled, therefore, by those who find the academic life to be so hard and so stressful. Perhaps they would have benefited from spending eight hours down a coal mine in their adolescence?

The same might apply to lawyers. I can't say that I've ever been in a coal mine, but I did spend one day (yes, one day) doing manual labor one summer while I was home from college. It was a one-day assignment that I got through a temp agency. It involved going to a dusty, dank warehouse, and helping another man unload an entire semi-truck full of giant packages of fiberglass insulation. When I say "giant," I mean too large for either of us to lift by ourselves -- probably 75 to 100 pounds, and nothing to grip with. We had to roll the packages off the truck, and then stack them 4 high (i.e., to a level of about 8 or 9 feet) in the warehouse. All the packages were covered in fiberglass dust, which ended up covering one's entire body and itched like crazy. Plus, it was probably about 110 degrees in the warehouse, which was unventilated.

It was the most miserable day of work that I've ever had to do. Compared to that one day, being a lawyer is almost like a cakewalk.

More on Balkin vs. Goldberg

Jack Balkin has written a lengthy response to my post just below. As always, I appreciate his thoughtful discussion of the issues.

I think, however, that he is shifting the terms of the debate. Jonah Goldberg's original column pointed to certain modern liberals who publicly oppose the Federal Marriage Amendment not on substantive grounds, but on the theory that it is somehow inherently wrong to amend the Constitution in any fashion. Goldberg claimed that such liberals are hypocrites to the extent that they also support the idea of a "living Constitution," which in effect allows judges to create new constitutional values without the safeguards of the official amendment process. Goldberg simultaneously claimed that conservatives -- today's conservatives -- are not guilty of the same hypocrisy, because they oppose judicial activism.

Balkin's first response listed numerous cases in which "conservatives" have engaged in judicial activism throughout the past 160 years. And my first response to Balkin pointed out that today's conservatives would disagree with many of the decisions on his list, making the list not-very-useful in judging whether today's conservatives are guilty of hypocrisy.

Now Balkin responds again. Here's the nub of his argument:

[Buck's] approach won't work. It's not responsive to my argument with Jonah. He claimed that judicial activism is a liberal phenomenon. I said that historically it was the product of conservative forces. So to see whether my historical claim is correct we have to look at what those people who were generally regarded in their own time as conservative believed to be the best interpretation of the Constitution. We can't impose the principles of contemporary conservatism because that is anachronistic and indeed, irrelevant to my quarrel with Jonah. For example, the vast majority of conservatives today think Brown v. Board is rightly decided. But in 1954 many, if not most, had very serious doubts about the opinion. The same is true for a whole host of other liberal causes of the 1950's and 1960's which have become part of the consensus that contemporary liberals and conservatives now share.

As I said, this seems to be shifting the terms of the debate. I agree that some historical cases were examples of "conservative" "activism." I just don't think that this tells us anything about whether modern conservatives are hypocrites. After all, Goldberg's main point doesn't depend on the good behavior of all conservative jurists throughout history. His point was that today's conservatives are opposed to the "living Constitution" theory, and that they would therefore be innocent of hypocrisy if they also opposed any "tinkering with the Constitution."

Yes, Dred Scott may have been viewed as "conservative" in its own day. But if, as Balkin admits, no modern conservative agrees with Dred Scott, what non-inflammatory purpose is served by bringing up that case when the question is whether modern conservatives are hypocrites? Balkin states that his argument is meant to criticize the group of people who "who were generally regarded in their own time as conservative." But this is a category that encompasses polar opposites; it is so broad that it is meaningless.

Bottom line -- Balkin's original argument can be boiled down to this:

1. Conservatives claim to disbelieve in judicial activism.
2. Despite 1, conservatives have practiced judicial activism.
3. Therefore, conservatives are hypocrites.

This argument commits the fallacy of equivocation. In 1, the word "conservative" applies to modern conservative thinkers and politicians (whom Goldberg was discussing). The word "conservative" in 2, however, is being applied to anyone at any point in American history who might have been described (in his own time or even in retrospect) as "conservative," even if modern conservatives completely disagree with that person's thoughts or decisions. The argument is therefore invalid, except to the extent that 2 refers to examples of modern conservative judicial activism.

UPDATE: Don't miss Larry Solum's contribution to this "pseudo-debate," as he puts it. In this passage, Solum agrees with me:

The more serious problem is with Balkin's apparent endorsement of nominalism about the categories of "liberal" and conservative." Political parties change their ideologies, and political labels change their meaning. The Democrats were the party of segregation until the 1950s; Republicans took up the banner of state's rights with Nixon's "southern strategy" in the late 1960s. The label "liberal" was associated with free markets and individual liberties until fairly recently; now, these ideas are considered "conservative" by some and "libertarian" by others. Of course, we can be nominalist about our labels for political ideologies. We can say, "By 'conservatism' we just mean whatever is called by that name." But if this is what Balkin means, then his claim that conservatives have a much longer history of judicial activism is not much of a claim.

Right.

Newspapers

Professor Bainbridge says that he supports Bush but doesn't particularly like him. One of his reasons: "His smug anti-intellectualism (how can you be proud of not reading the newspaper?)."

Bush may be anti-intellectual, but not reading the newspaper is not the best sign of this. On the newspaper issue, Bush seems to be a Jeffersonian. Here's a quote from a letter Thomas Jefferson wrote in 1807:

I really look with commiseration over the great body of my fellow citizens, who, reading newspapers, live & die in the belief, that they have known something of what has been passing in the world in their time . . . . General facts may indeed be collected from them, such as that Europe is now at war, that Bonaparte has been a successful warrior, that he has subjected a great portion of Europe to his will, &c., &c.; but no details can be relied on. I will add, that the man who never looks into a newspaper is better informed than he who reads them; inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods & errors. He who reads nothing will still learn the great facts, and the details are all false.

Perhaps an editor might begin a reformation in some such way as this. Divide his paper into 4 chapters, heading the 1st, Truths. 2d, Probabilities. 3d, Possibilities. 4th, Lies. The first chapter would be very short, as it would contain little more than authentic papers, and information from such sources, as the editor would be willing to risk his own reputation for their truth. The 2d would contain what, from a mature consideration of all circumstances, his judgment should conclude to be probably true. This, however, should rather contain too little than too much. The 3d & 4th should be professedly for those readers who would rather have lies for their money than the blank paper they would occupy.

A Three-Headed Frog

A question for Thomas Nagel: What is it like to be a three-headed frog?

Balkin on Goldberg

In this column, Jonah Goldberg criticizes the idea that amending the Constitution is, no matter what the subject matter, something to be disfavored. Jack Balkin agrees with Goldberg's main point:

Should we refrain from amending the Constitution because it's sacred and the Framers knew what they were doing? I don't buy this particular argument against the Federal Marriage Amendment at all. I agree with Jonah Goldberg that this sort of claim is a non-starter, especially if you believe in a "living Constitution" that responds to the times.

Indeed, the argument for amending the Constitution through Article V is at least as strong as the argument for allowing Article III judges to change constitutional meanings through interpretation, because Article V itself specifies a democratic process for amendment.

"At least as strong." Well, that's something, I guess. On a similar note, I'd say that under our Constitution, the argument for allowing Congress to declare war is at least as strong as the argument for giving the President sole discretion in that area.

Goldberg makes a further point, with which Balkin disagrees:

By the way, I'm singling out liberals for a reason. Conservatives who oppose amending the Constitution are against the sort of judicial activism that rewrites the meaning of the Constitution while leaving the text unchanged. There's nothing inconsistent about being against judicial activism and against "tinkering" with the Constitution through the amendment process. You can't say the same about liberals who see the Constitution as if it were Felix the Cat's magic bag from which they can pull out any public policy they want.

Balkin responds by saying that conservatives are guilty of the same sort of hypocrisy:

Like many people, Jonah fails to realize that liberals have no monopoly on judicial activism. Conservatives, if anything, have a much longer history of reading their values into the Constitution. Here are only a few examples: The decision in Dred Scot v Sanford striking down the Missouri Compromise and holding that blacks could never be citizens, the gutting of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughterhouse Cases less than five years after the Amendment was ratified; striking down the Civil Rights Act of 1875, which was passed by the very same Congress that passed the Fourteenth Amendment, in the Civil Rights Cases; the creation of the police power jurisprudence of the Lochner Era which selectively struck down labor laws that conservatives didn't like; striking down the federal income tax in the Pollock case; reading the words "other states" in the Eleventh Amendment to mean "other states or same state" in Hans v. Louisiana; the creation of the exception to Hans in Ex Parte Young when Hans turned out to prevent conservative judges from enjoining laws that were inconsistent with their laissez-faire values; the manufacture of federalism doctrines out of whole cloth in National League of Cities v. Usery; and, after National League of Cities was overruled, the creation of new federalism doctrines out of whole cloth to the same effect in Seminole Tribe and Alden v. Maine; the manufacture of the "congruent and proportional" test and its use to limit civil rights legislation in Kimel and Garrett; the continued development of commercial speech doctrine to limit government power to regulate advertising; and last but not least, the application of strict scrutiny to race conscious affirmative action in the face of evidence that the Fourteenth Amendment was not intended or written to enforce a colorblind Constitution.

All I can say to Jonah Goldberg is, Mr. Pot, Meet Mr. Kettle.

An impressive list, and Balkin scores a couple of good points, primarily as to cases that don't follow the text of the 11th Amendment, or the original meaning of the Fourteenth Amendment's Equal Protection Clause and Section 5.

One can quibble about a few of the cases, though: I'm slightly skeptical as to whether the income tax case was really all that "activist," given what the original Constitution said about federal taxation prior to the 16th Amendment. And I'm very skeptical about the claim that the modern Court's halting steps toward protecting commercial speech are "activist" in any sense whatsoever. The true activism, it seems to me, was in the New Deal Court's completely unprecedented decision to strip commercial speech of First Amendment protection.

But even granting that all the above decisions were "activist," I'm baffled as to how Balkin could claim that they were also "conservative" in any meaningful sense. There is nothing -- not interpretive methodology, not results -- that they all have in common.

For example, the effort to restore protection to commercial speech simply wasn't initiated by "conservatives." Two of the most important cases in this area are Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), and Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980). In both cases, all the liberal Justices voted with the majority, and Rehnquist dissented alone. True, these days the Court's liberals seem to disfavor commercial speech, while Justice Thomas has on many occasions argued that there should be no distinction between commercial and non-commercial speech (just as Justice Brennan did in his day). But not even Scalia is with Thomas on this issue. How Balkin can characterize this line of cases as "conservative activism" is a mystery.

Besides, some of the decisions contradict each other. Balkin claims that the Slaughterhouse Cases, where the Court upheld economic legislation, were conservative. (Here he ignores the fact that it is mainly conservatives and libertarians these days -- i.e., Justices Thomas and Rehnquist in their Saenz v. Roe dissent-- who would like to overturn Slaughterhouse.) He then claims that the Lochner era cases, where the Court struck down economic legislation, were conservative as well.

Another example: He claims that Hans v. Louisiana is "conservative" because it held that people can't sue their own state government. He then claims that Ex Parte Young is "conservative" because it held that people can sue state officials. This is a "heads I win, tails you lose" analysis: Balkin attributes the outcome to "conservative" activism no matter which way the Court ruled.

Then there is the claim that Dred Scott was a "conservative" decision. No conservative jurist of the past century would have agreed with Dred Scott, and it is grossly unfair to pretend that Dred Scott is an example of how modern conservatives are hypocrites.

Perhaps Balkin would claim that the Justices who decided Dred Scott would have been seen as "conservative" in their own day. Perhaps; but the meaning of "conservative" has obviously changed dramatically over the past 150 years, so much so that it is utterly meaningless to generalize about how "conservatives" have behaved over that time period. It would be just as (in)accurate to call Dred Scott "liberal," on the grounds that the Democrats of the time were pleased with the decision.

Or perhaps Balkin would point out that Justice Taney claimed to be writing an originalist decision in Dred Scott, and that because today's conservatives also praise originalism, this links them to Dred Scott. But this is inapt. Taney claimed to be originalist, sure, but he got the originalist meaning wrong, as Harry Jaffa has demonstrated at length. (Balkin would have to admit as much, given that he attributes the outcome in Dred not to a faithful rendering of original intent, but to those Justices who were "reading their values into the Constitution.") Besides, if claiming to be an originalist in any one case makes someone a "conservative," then Stephen Reinhardt is a "conservative" (he purported to write an originalist opinion in Silveira v. Lockyer, which held that the Second Amendment was never intended to protect an individual right).

I suspect that Balkin's list of "conservative" decisions from the past 150 years was selected without any reference to what modern conservatives believe, but solely on the basis of what modern liberals disagree with. But many modern conservatives also disagree with either the methodology or the result (or both) in many of the cases on Balkin's list.

The Passion of the Christ

I saw Mel Gibson's movie on Sunday, and found it powerfully moving. I have only one comment: I've read probably a hundred articles about the movie over the past few weeks, and most discuss whether the movie might inspire anti-Semitism in some people. In all of the articles I've read, no one -- and I mean no one -- has even mentioned the following scene:

As Jesus takes his last steps before the actual crucifixion, he passes in front of the Jewish high priests who earlier had urged that he be put to death. At that moment, there is a flashback to a time when Jesus was teaching his disciples. I don't recall the precise words from the screen, but I'm 99% certain that they came from John 10:17-18, where Jesus says:

I lay down My life that I may take it again. No one takes it from Me, but I lay it down of Myself. I have power to lay it down, and I have power to take it again.

It's very odd that no one mentions this scene. Gibson made a deliberate choice to use words and visual framing to emphasize that no one -- including the Jewish high priests in particular -- had taken Jesus' life, and that Jesus was laying down his life of his own free will. Surely this scene would be highly relevant to any assessment of whether the movie might inspire anti-Semitism.