The individual mandate "may violate the constitution of Ayn Rand, but they do not violate the Constitution of the United States."

Said Acting Solicitor General Neal Katyal said today, in oral arguments before the Eleventh Circuit, as reported by Sasha Volokh, who quips "Mr. Herbert Spencer, call your office."

***

The quip refers to the Oliver Wendell Holmes Jr. dissent in Lochner v. New York:

The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

Lochner is a much-deprecated case from 1905.

"This is why I've often said that legal ethics is to actual ethics as Madison, Wisconsin is to James Madison..."

"... the former is vaguely inspired by the idea of the latter."

Sasha Volokh disses Madison in the comments to a Volokh Conspiracy post by Judge Paul Cassell.

The post is about whether it's ethical for a judge to perform a marriage ceremony for the defendant he's just sentenced. Lawprof Stephen Gillers had said "It would show very poor judgment for the court to perform this ceremony or even to entertain the possibility. He should have shot this down as soon as they asked. He's not there to perform weddings; he's there to send a man to jail" and "I suspect that in 232 years of American history, it's never happened that a [federal] judge has performed a marriage ceremony for a defendant awaiting sentencing in a serious felony case in his own court."

But Cassell himself had performed such a marriage. He says: "I thought it was important to honor the request for the defendant for the service because I thought it would improve his prospects for rehabilitation if he knew he had lovely wife willing to wait for him." But he concedes that it might be a ploy for leniency or inadvisable for some other reason. (Gillers was commenting on a child pornography case where the 42-year-old defendant was marrying a 21-year-old.) In classic judicial fashion, Cassell thinks the matter can be trusted to the discretion of the trial judge.

So that's the post. It's interesting.

But what's with dissing Madison? If we could reanimate James Madison and show him this place, would he really have such a problem with us?

***

Several other commenters at VC bring up "The African Queen." I couldn't find a YouTube clip for the glorious scene they were referring to, but I did run across the trailer, which might make you want to rewatch the whole movie to get to the part the commenters were talking about. (Not sure what they meant to prove there, as the ethics are demonstrated by a Nazi.)



AND: Thanks to commenter Bearbee, here's that marriage scene (a big spoiler if you haven't seen the movie):



AND: Just watched the clip. "By the authority vested in me by Kaiser William II, I pronounce you man and wife. Proceed with the execution." So those weren't Nazis. The movie takes place in 1914, at the outset of WWI. Sorry for the vague memory. So Rosie's dress wasn't all that old-fashioned. Note too that it's the ship captain who performs the marriage (and gives the sentence), not a judge.

MORE: In the comments, Sasha denies that he dissed Madison, I argue with him, and he responds. Also, Sasha's analogy inspires a contest.

AND: Eugene enters the fray.

After an absence, "absent."

Sasha Volokh is back at Volokh Conspiracy after an absence of 2 years. It's nice to see him back and nice to get a chance to see what's the first thing he wants to talk about when he gets back. It's the surpassingly nerdy dual topic of the way anyone can contribute information about word usage to the Oxford English Dictionary and whether the use of the word "absent" as a preposition is really, as some blog commenter recently said, just a lawyer's tic.

Don't get me wrong. I love this subject matter. The lawyer's "absent" has been driving me crazy for years, and I love almost any sort of discussion of the OED. My iPod Shuffle contains Simon Winchester's unabridged reading of "The Meaning of Everything: The Story of the Oxford English Dictionary." So I'm completely on board with the nerdiness Sasha brings to his reemergence as a VConspirator.

Anyway, Sasha came up with some info on the prepositional use of "absent," which he puts in OED style:

1888 South Western Reporter VIII. 898 If the deed had been made by a stranger to the wife, then a separate estate in her would not have been created, absent the necessary words; but, being made to the wife by the husband, a separate estate, as against him, was the result. 1893 South Western Reporter XII. 629 Absent any evidence to the contrary, a proper and legitimate purpose will be presumed. 1898 South Western Reporter XLV. 303 Absent any one of these ingredients, there is no contract. 1906 South Western Reporter XCIV. 591 Absent one of these ingredients, there is no contract. 1914 South Western Reporter CLXXII. 17 A mere barren and abandoned conspiracy sounding in words, but jejune of acts or results, is not actionable, absent a statute so declaring. 1929 South Western Reporter (2d series) XVIII. 490 Absent a tender of an instruction properly defining said words, it was not error for the court to fail to do so. 1938 Federal Suppl. XXV. 861-62 The design, absent the color and display thereby created, is not more ornamental than many types of similar shoes.

This doesn't refute the blog commenter, of course. It demonstrates the ugly lawyer's use of the word. Is it limited to lawyers? It's so often used by lawyers that it's hard to believe it hasn't infected nonlegal writing, but it's still ugly and feels abnormal. I'd recommend avoiding it even in legal writing, precisely because it sounds like legalese.