Are STEM Degrees Already Subsidized More?

Alex Tabarrok argues in his ebook, Launching the Innovation Renaissance, that graduates with STEM (science, technology, engineering, math) degrees are more likely to create innovations that benefit the rest of society – and therefore they are relatively more deserving of educational subsidies than students in other disciplines. Here’s how Alex puts it:

Most importantly, graduates in the arts, psychology and journalism are less likely to create the kinds of innovations that drive economic growth. Economic growth is not a magic totem to which all else must bow, but it is one of the main reasons we subsidize higher education.

The potential wage gains for college graduates go to the graduates — that’s reason enough for students to pursue a college education. We add subsidies to the mix, however, because we believe that education has positive spillover benefits that flow to society. One of the biggest of these benefits is the increase in innovation that highly educated workers theoretically bring to the economy.

As a result, an argument can be made for subsidizing students in fields with potentially large spillovers, such as microbiology, chemical engineering, nuclear physics and computer science. There is little justification for subsidizing sociology, dance and English majors.

I think Alex is right; if we’re going to subsidize education, we should subsidize education that generates external benefits for society at large.

But I’m wondering if, in fact, we might already subsidize STEM degrees more than other degrees. Consider the following three factors that make STEM courses more costly to teach:

1. STEM professors are typically paid higher salaries. See, for example, this report from the Chronicle of Higher Education. The last table shows salaries by discipline, as a percentage of the average salary of English professors. Across all disciplines, the average salary is 13.4% higher than an English professor’s. But Engineering professors earn 25.2% more, Computer & Information Sciences 28.4% more. Mathematics is below average at 7.2%, but overall, STEM professors appear to get paid a good bit more than the average. Meanwhile, Fine Arts, Education, Communications, Philosophy, and Psychology are all below the average. (This makes sense, because STEM professors probably have better outside job opportunities and thus a higher opportunity cost.)

2. It’s easier to teach non-STEM courses in large lecture halls, whereas STEM courses often require smaller class sizes to be taught effectively. (I don’t know this with certainty, but I’ve been told as much by university administrators.)

3. When STEM courses are taught in large lecture halls, they require a larger number of teaching assistants to give the students the attention they need. (Again, I don’t know this with certainty, but it’s what I’ve been told.)

Putting 1-3 together, it seems pretty likely that STEM education is more costly to produce. And yet colleges and universities typically charge all students the same tuition regardless of major. True, STEM students may be charged nominal lab fees, but I doubt such fees make a large difference in percentage terms.

So when we consider how much students are charged relative to cost, it looks like STEM students might be getting the larger subsidy. Of course, I don’t know how high the optimal subsidy would be, so it’s possible the current subsidy isn’t large enough.

It’s also worth noting that professors in Law and Business Administration earn the highest pay differentials of all (59.5% and 50.9% above the average English professor), which would imply that these fields are getting among the highest relative subsidies. Econ professors also earn a high differential of 41.2%. Again, this is presumably driven by outside job opportunities. Unless we believe Law, Business Admin, and Econ generate strong positive externalities, maybe we should be charging students more to major in those fields.

Is there some factor I’m missing that would diminish the relative subsidy to STEM (or at least STE) degrees?

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Quartering: A Forbidden M&M in the Bowl of Rights

My most recent paper, “Property” in the Constitution: The View from the Third Amendment, 20 William & Mary Bill of Rights J. __ (2012) (forthcoming), explains how one of the most obscure provisions in the Constitution can help to clarify one of its most important terms. I may have more to say about that more general point later. Here, I want to highlight a connection between the 3rd Amendment’s restrictions on the quartering of troops in private homes and the rock band famous for such hits as Running with the Devil, Panama, and Jump.

In the grand struggle to protect individual rights against government trespass, the Third Amendment plays a role akin to the provision, in Van Halen’s standard performance contract, requiring a bowl of M&Ms in band’s hospitality room with all the brown ones removed. Though sometimes touted as an example of rock star excess, the clause in fact served to test whether the band’s contractual partner, providing the concert venue, had read the terms of their agreement. Finding brown M&Ms backstage warned Van Halen to look out for more serious breaches, such as in the contract’s provisions on wiring, security, and ticketing.

Quartering serves as a forbidden M&M in the Constitution’s bowl of rights and violations of the Third Amendment signal more serious problems. Consider that the Third Amendment saw violation during the War of 1812, the Civil War, World War II, a 1979 New York prison guard strike, and Hurricane Katrina. Consider, and worry.

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U.S. Supreme Court: “Private” = “Public”

What does “private” mean in the U.S. Constitution? The word appears there only once, in the Fifth Amendment’s Taking Clause: “[N]or shall private property be taken for public use, without just compensation.” You might think that “private” means something like “not owned by the government.” The Supreme Court, however, evidently thinks it means something else.

My most recent paper, “Property” in the Constitution: The View from the Third Amendment, 20 William & Mary Bill of Rights J. __ (2012) (forthcoming; invited), discusses that and other linguistic perversions, all towards demonstrating that courts would do better to adopt the plain, present, public meaning of the text. Here, edited for your browsing pleasure, I describe the Supreme Court’s twisted interpretation of “private” in the Takings Clause.

In U.S. v. 50 Acres of Land, 469 U.S. 24 (1984), the Supreme Court held that the Takings Clause’s protection of “private Property” covers property owned by state and local governments. The Court admitted that “the language of the Amendment only refers to compensation for ‘private property,’ and one might argue that the Framers intended to provide greater protection for the interests of private parties than for public condemnees.” Id. at 31. The Court nonetheless went on to hold that “private” includes “public”:

When the United States condemns a local public facility, the loss to the public entity, to the persons served by it, and to the local taxpayers may be no less acute than the loss in a taking of private property. Therefore, it is most reasonable to construe the reference to ‘private property’ in the Takings Clause of the Fifth Amendment as encompassing the property of state and local governments when it is condemned by the United States. ibid.

We might well doubt the Court’s logic in equating inter-governmental transfers with takings of private property, as well as the truth of the claim that a taxpayer feels the loss of local public property as keenly as the loss of a home. We might likewise doubt the 50 Acres court’s invocation of U.S. v. Carmack,329 U.S. 230 (1946), a case the Court had decided nearly 40 years earlier. In fact, the Court in Carmack merely took note that the federal government had conceded its obligation to pay for taking locally-owned public property. Because the parties did not contest the claim, Carmack could hardly have decided it. The Court in 50 Acres of Land thus had only itself to credit or blame for giving “private” an extraordinarily broad meaning.

In retrospect, following the controversial holding of Kelo v. City of New London, 545 U.S. 469 (2005), we can see a sort of perverse logic at work in how the Supreme Court reads the Takings Clause. Whereas the Court in 50 Acres held that the protections afforded to “private Property” extend to public property, the Court in Kelo held that “for public use” extends to takings for private use done “pursuant to a ‘carefully considered’ development plan.” Id. at 478 (quoting 268 Conn. 1, 54, 843 A.2d 500, 536 (2004)).

Just as the Supreme Court thinks that “private” includes “public,” in other words, it also thinks that “public” includes “private.”

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Pan Am and the Economics of Hot Flight Attendants

A quick break from the economics of Aesop, so I can talk about the economics of ABC’s Pan Am before it gets canceled. Not that I want it to get canceled; I watched the pilot and liked it. But the Nielsen numbers say I should speak now while it’s still topical...

For an economist, the most fascinating aspect of Pan Am is the highly attractive flight attendants -- or rather, stewardesses, since the show is set in the early 1960s. If you’re young enough, you might think that’s just TV. But I’m just old enough to remember flying in the 1970s, and I recall stewardesses who really were, in fact, hot. Okay, I was too young to understand the concept of “hot” -- but I was definitely aware that I was being attended by some very pretty young women.

Not so anymore. Flight attendants aren’t necessarily unattractive now, but they’re no more fetching than people in any other service profession that doesn’t get tips. And what’s changed? In a word, deregulation.

Prior to airline deregulation, which was passed in 1978 and completed over the next few years, airfares had been set by the Civil Aeronautics Board (CAB). For many routes, those airfares were simply too high. As predicted by a simple supply-and-demand model, airlines were willing to offer more flights at these high prices than customers were willing to buy. Under normal market conditions, that would lead to falling prices. But since the airlines legally could not compete on price, they competed on quality instead. They offered better service, better food, and... wait for it... more attractive stewardesses.

When deregulation came along, however, it became apparent that as much as male customers might have enjoyed the eye candy, they weren’t willing to pay for it. Higher quality might seem like a good thing, but it’s really only good if the benefit exceeds the cost. More attractive staff can command higher wages. The airlines could have continued to pay them, if the higher quality had attracted more customers. But as it turns out, most people just wanted to get where they were going, fast and cheap. Deregulation fueled a democratization of air travel, making what once was a luxury item available to nearly everyone. The number of people who fly at least once a year has more than doubled since 1978, while the population has grown by about 40%. These new customers have flocked to the airlines with no-frills or low-frills service, a trend that continues to this day (JetBlue, anyone?).

And y’know what? That’s a good thing, yet another efficiency gain from deregulation. There are plenty of other ways to see attractive women.

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Aesop Econ: The Grasshopper and the Ants

Here’s one I remember from childhood:

THE ANTS were spending a fine winter’s day drying grain collected in the summertime. A Grasshopper, perishing with famine, passed by and earnestly begged for a little food. The Ants inquired of him, “Why did you not treasure up food during the summer?” He replied, “I had not leisure enough. I passed the days in singing.” They then said in derision: “If you were foolish enough to sing all the summer, you must dance supperless to bed in the winter.”

Wow. There’s so much econ in this fable it’s hard to know where to start.

Obviously, we’re looking at a problem of intertemporal choice. The insects must decide how much effort to exert during an earlier period (summer) to prepare for a later period (winter). Exerting effort entails a present cost in terms of forgone leisure, but a future benefit in terms of consumption. The optimal choice depends on the magnitude of the subjective costs and benefits, as well as the chooser’s rate of time preference -- that is, how much he values the present relative to the future.

To a behavioral economist, the fable involves myopia or hyperbolic discounting. To simplify greatly, the grasshopper places too much weight on the present simply because it’s the present. If asked during the spring to choose his summer behavior, the grasshopper might plan to work harder. But then the lazy days of summer arrive, and suddenly he decides to kick back. This is known as time inconsistency, and it is often regarded as evidence of cognitive bias or irrationality.

To a neoclassical economist, however, this is clearly a fable about moral hazard -- the tendency to take greater risks when shielded against the consequences. No one knows whether the coming winter will be mild or harsh, and so they must choose between storing up food or taking a gamble. The grasshopper’s failure to work during summer might well be a rational response to the expected assistance of others in the event of a harsh winter.

And this raises the specter of the Samaritan’s Dilemma. People of a kind and decent disposition don’t wish to allow others to suffer, especially if helping them would be a small sacrifice. But providing charity may foment moral hazard, thereby leading to more people needing help.

The Samaritan’s Dilemma featured prominently in the most recent Republican presidential debate, in which Wolf Blitzer posed a tough question to Ron Paul:

A healthy 30-year-old young man has a good job, makes a good living, but decides: “You know what? I’m not going to spend $200 or $300 a month for health insurance because I’m healthy, I don’t need it.” But something terrible happens all of a sudden, he needs it. Who’s going to pay if he goes into a coma, for example? Who pays for that?

This 30-year-old man is the grasshopper, and we are the ants. Aesop’s ants take the position of Ron Paul: “Well, in a society that you [sic] accept welfarism and socialism, he expects the government to take care of him. … But what he should do is whatever he wants to do, and assume responsibility for himself.” I find it interesting that so many people -- who presumably heard this fable in their childhood and thought it wise – found Paul’s answer reprehensible.

Paul also advocated private charity as an alternative to government. Yet private charity, too, creates the potential for free-riding by the irresponsible. So there is a tension in Paul’s position. John Goodman explains how the tension can be resolved:

[P]rivate sector charitable activities are never run like government entitlements. If you are away from home and lose your wallet, the local Salvation Army will give you a meal and a place to sleep and maybe even some cash. But they will not do this day after day, night after night. It’s probably fair to say that all private charities seek to give aid without encouraging dependency.

Aesop’s ants follow a similar policy; they do not refuse the grasshopper aid outright, but instead inquire as to how the grasshopper’s situation arose. Of course, charitable discretion is not a perfect answer. There is always the risk of denying help to the deserving, and also the risk of giving help to the undeserving (what if the grasshopper had lied?). But if you grasp the Samaritan’s Dilemma, you realize there is no perfect answer; that’s why it’s called a dilemma.

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Aesop Econ: Hercules and the Wagoner

A CARTER was driving a wagon along a country lane, when the wheels sank down deep into a rut. The rustic driver, stupefied and aghast, stood looking at the wagon, and did nothing but utter loud cries to Hercules to come and help him. Hercules, it is said, appeared and thus addressed him: “Put your shoulders to the wheels, my man. Goad on your bullocks, and never more pray to me for help, until you have done your best to help yourself, or depend upon it you will henceforth pray in vain.”

Self-help is the best help.

This might be a story of simple laziness (or in economic terms, a strong preference for leisure over effort). But here’s what I wonder: what made the carter think Hercules might come and help? What led to such an odd expectation? I suspect the carter, or people he knows, must have tried this strategy before -- and with success. Hercules’ words lend some support to this hypothesis: never more pray for help without first trying yourself, or henceforth pray in vain. Though it’s not entirely clear, it sounds like Hercules might be known for lending a hand in situations like this.

For that reason, I read this as a story about disincentives to work. Such disincentives come in four primary forms: punishments for working; reduced rewards for working; rewards for not working; and reduced punishments for not working. The last of these is what’s in play here. Knowing that help from Herc is forthcoming, people become less inclined to exert effort themselves.

Work disincentives are a common topic in current policy debates. One example is unemployment insurance. The purpose of such insurance is to help those who cannot find jobs. The worry is that unemployment payments discourage people from seeking and taking jobs. Of course, the claim is not that all unemployed people, or even a great number of them, fall into this category -- only that some unknown number do. (I personally know at least three people who fit the bill and have told me so.) And then the question is whether the gain from helping those who genuinely need help outweighs the loss from those who don’t.

Getting back to Hercules, the question is what policy he should adopt. If he helps everyone who seems to need help, he will encourage dependency by some. If he refuses to help anyone, then some poor souls may be stuck in ruts indefinitely. So Hercules adopts the intermediate policy of demanding people try self-help first before begging his assistance. And then the question will become: how many of those he helps are really trying?

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Aesop Econ: The Two Dogs

A MAN had two dogs: a Hound, trained to assist him in his sports, and a Housedog, taught to watch the house. When he returned home after a good day’s sport, he always gave the Housedog a large share of his spoil. The Hound, feeling much aggrieved at this, reproached his companion, saying, “It is very hard to have all this labor, while you, who do not assist in the chase, luxuriate on the fruits of my exertions.” The Housedog replied, “Do not blame me, my friend, but find fault with the master, who has not taught me to labor, but to depend for subsistence on the labor of others.”

Children are not to be blamed for the faults of their parents.

Aesop takes this for a story about parental duty, but I see a story about specialization according to comparative advantage.

Both hunting and house-watching are valuable activities. Now, it may well be that the Hound could guard the house as well as the Housedog. But that doesn’t mean the Housedog is useless. On the contrary, his presence allows the Hound more time to go hunting, thereby increasing the household’s overall productivity.

Imagine what would happen if the Hound and Housedog split their time between the two activities, perhaps by swapping places at lunch. Suppose the Hound can catch ten game birds per day versus the Housedog’s four, and they are equally good at guarding the house. By splitting their time, they would catch a total of seven birds per day, i.e., five from the Hound’s half-day plus two from the Housedog’s half-day. But by specializing according to their respective comparative advantages (the Hound in hunting, the Housedog in guarding), they get ten birds, for a gain of three. The Housedog enables that gain by guarding the house; does he not also deserve a share of the spoils?

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Aesop Econ: The Charcoal-Burner and the Fuller

My Amazon Kindle app came with a free copy of Aesop’s Fables (translation by George Fyler Townsend), which I began reading a few days ago. Aside from being charmed by their brevity and deceptive simplicity, I was also struck by how many of the stories involved economic concepts -- some obviously, others subtly. So I thought it might be fun to do a series of blog posts analyzing Aesop’s Fables from an economic perspective.

To start, here’s a fable called “The Charcoal-Burner and the Fuller.”

A CHARCOAL-BURNER carried on his trade in his own house. One day he met a friend, a Fuller, and entreated him to come and live with him, saying that they should be far better neighbors and that their housekeeping expenses would be lessened. The Fuller replied, “The arrangement is impossible as far as I am concerned, for whatever I should whiten, you would immediately blacken again with your charcoal.”

Like will draw like.

This is a story about negative externalities. Were the charcoal-burner and fuller to move in together, the charcoal-burner’s trade would impose unwanted costs on the fuller’s. How might this problem be addressed?

In a traditional Pigovian analysis of the situation, the coal-burning’s harmful side effects might be regarded as justifying a correction. Perhaps the government ought to impose a tax on burning charcoal; the optimal tax would be set equal to the marginal external cost in terms of blackened garments. That would induce the charcoal-burner to consider the full costs of his choices, and therefore to reduce his charcoal-burning to the efficient level.

But Aesop’s story presages a more sophisticated Coasean analysis. As Ronald Coase observed, externalities are reciprocal in nature. To permit the burning of coal would harm the fuller -- but to restrict the burning of coal would harm the coal-burner. The presence of both activities is necessary for the externality to exist. And this draws our attention to the possibility of averting the harm by means other than reducing coal-burning. According to the least-cost avoider principle, an externality should be reduced or prevented by the party who can do so at the lowest cost. In the case at hand, the fuller can avoid the externality by not moving in with the charcoal-burner in the first place.

In most modern externality analysis, the story begins with two parties or activities that are already in conflict. But Aesop properly chooses to start his story before the conflict comes to be. Moreover, Aesop (like Coase) reminds us that externality problems can, at least sometimes, be solved or avoided by the interested parties themselves.

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What is Originalism Good For?

Originalism--the theory that we should Interpret the Constitution according to the public meaning of its words at the time of its ratification--serves important instrumental goals. It promises to give relatively clear and objective definitions to crucial but contestable terms, such as “cruel and unusual” or “due process of law,” by recurring to the linguistic usage of those who ratified the Constitution. That interpretive process, though hardly easy, at least protects us from the sort of judicial casuistry that threatens to drain all fixed meaning from the Constitution’s words.

To praise originalism for relative certainty and objectivity is not to say that its definitions always comport with our own, however, or that they hold constant from one place in the Constitution to another. Consider “cruel and unusual,” for instance. So long as they do not lapse into what Scalia called a “faint-hearted” devotion to principle, originalists must admit that it is not unconstitutional to publicly flog or brand criminals. Originalism thus gives us a very clear answer, and one untainted by any contemporary bias (indeed, entirely divorced from modern sensibilities), to the question of what “cruel and unusual” means. It may not be quite the answer the average person—or the average criminal—expects, but originalism does not pretend to play to the crowd.

Nor does originalism, despite its certainty and objectivity, always give words consistent interpretations. In the case of “due process of law,” for instance, originalism suggests that a different meaning applies each of the two times the phrase appears in the Constitution. Why? Because each such appearance dates from a different ratification process, in a different era, in which “due process of law” meant different things. Perhaps it would not be fair to thereby criticize originalism for inconsistency on that count; the same interpretative process applies to each appearance of “due process,” after all. But it does drive home the point that originalism does not care about reading the Constitution in the same way that an ordinary subject, using ordinary English, would read it today.

Originalism has another instrumental virtue: It tends to generate such substantively attractive results as limited government, the rule of law, and respect for individual rights. For that, we can credit not just the sound political judgments of the Founders but also, and more generally, the supermajoritarian constraints imposed on Constitutional ratification. Because the ratification process has to satisfy so many parties, who have many conflicting interests, the Constitution and its amendments tend to support universal values. Contemporary judges, because they do not face those similar constraints, risk following the twists and turns of case law toward unlimited government, arbitrary laws, and disregard for individual rights. Originalism, by recurring to the Constitutional meanings that won ratification, offers a way (though not the only or necessarily best way) to stave off that ugly outcome.

[The above comes from my forthcoming paper, Originalism and the Consent of the Governed: A Critique and a Cure, which I’ve submitted for presentation at the Third Annual Originalism Works in Progress Conference.]

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Volokh on the Constitution's Plain, Present, Public Meaning

My friend, Eugene Volokh, has posted some thoughtful comments on my consent-based approach to reading the Constitution. His excellent questions show one benefit of looking for the plain, present, public meaning of the Constitution: It gives us a fresh look at a document we risk treating as putty for judges or as a dead historical artifact.

I won't pretend that a consent-based approach to reading the Constitution solves all our interpretive problems--especially hard problems like those Eugene raises--but every theory struggles with the text. Looking for the plain, present, public meaning of the Constitution offers at least another way to tackle the problem. I'd argue, further, that it offers us the best way to maximize the consent of the governed.

Eugene cites a "number of terms that either don’t have a 'plain, present, public meaning' apart from either their originalist or precedential meaning," such as those in the First Amendment or other, well-known parts of the Constitution. I appreciate that observation--though again I emphasize that precedent-based "living" constitutionalists and originalists struggle with the same passages. I won't bother, here, to try to answer each puzzle that Eugene offers, as I am more interested in describing a methodology than I am in dictating particular results. I have opinions about such things, to be sure, but I'm no judge.

How should real-world judges interpret constitutional words or phrases that the public understands to have a specialized meaning (e.g., "establishment of religion") or no discernible meaning at all (e.g., "writ of habeas corpus")? The same way they would interpret and construct a contract in similar circumstances: interpreting legal terms as such, taking heed of their context, and constructing uncertainties against the drafting party (the U.S. federal government, here) and in favor of the adhering party (citizens and residents of the U.S.).

That does not lead to simply following Supreme Court precedents. I doubt that Kelo would come out the same way under that approach, for instance, nor that "Property" would end up with a different meaning each time it appears in the Constitution. Note, too, that the approach I describe leaves room for considering original meaning, which we should treat as something akin to "course of dealing" in the contract context. By borrowing the methodologies of contract law, a court can come as close as possible to finding the plain, present, public meaning of popularized constitutional phrases and uncommon terms such as "writ of habeas corpus." Perfection remains elusive, here as with other approaches to the Constitution. But this approach offers the best guarantee of preserving the consent of the governed.

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The Hard Question

Consent to constitutional governance varies by degrees and from person to person. Different levels of consent give different levels of justification. The hard problem is justifying the use of political violence against someone who expressly objects to it.

We respect the right to defend against a tort even absent the tortfeasor's express agreement, true. Everyone impliedly consents to the fundamental principles of tort law; they offer background rules for human conduct on which all socialized people depend. Our implied consent to tort law counts for a lot. It trumps merely hypothetical consent to the contrary, for instance. Some people offer fancy theories about that to which we would consent (usually something that benefits them). The implied protections of tort law trump such arrogant presumptions.

How, then, can a statist justify initiating coercion? Note that tort law boasts only a moderately powerful justification--one founded on implied consent. Express consent has greater power to justify. Therefore, the implied consent justifying tort law gives way before express consent, as when sparring partners tap fists before attacking each other. (Funny thing I've noticed about the BJJ studio I frequent: Lots of fighting; smiles all around.)

Have we expressly consented to constitutional governance? Some individuals undoubtedly have, such as those who have sworn oaths to uphold the Constitution. Perhaps run-of-the-mill citizens and residents show their implied consent to the authority of the U.S. federal government simply by not emigrating. And eloquent arguments have been made that the Constitution, if interpreted well, merits our hypothetical consent. See, e.g., Randy Barnett on the presumption of liberty.

Against those measures of consent, we hear polls suggesting that "consent of the governed" has fallen to a new low. We hear strong arguments that mere residency implies nothing about political allegiance, and philosophical claims that nobody would agree to a system of institutionalized coercion.

Consent weighs on both side of the scale measuring the justification of constitutional governance, both for and against. I cannot answer for anyone else about justifying the Constitution; you must answer for yourself. But with graduated consent theory, I offer you a way to tackle the question.


(With thanks to Sasha Volokh for stimulating discussion.)

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Original Meaning v. Consent of the Governed

At the Constitution's ratification, original meaning and consent coexisted. But with the advent of a new generation, the Founder's consent faded and died. To justify constitutional governance of the living requires the force of their living consent.

How can we win the consent of the governed? Only imperfectly, to be sure. The Constitution is not a contract. But we can best justify it by reading it as if it were a contract. More specifically, we should regard it as a standard form adhesion contract offered by the federal government to prospective subjects. The feds don't offer a terrible deal, as such things go. Those who attended the ratification debates accepted the offered Constitution, after all. But their choices do not very well bind us--not, at least, if justification relies on consent.

A court interpreting a standard form agreement would adopt the same approach. Suppose, for example, that Hertz first rolled out its standard form contract in 1953. Among other things, the contract said Hertz would provide a "safe" vehicle. The new contract was proposed to many various consumers and won the assent of many, thus bringing it into effect. But Hertz cannot cite that ratifying consent as binding on me; it must win my assent anew. And any court worth its salt will, if asked to interpret the contract between Hertz and me, inquire as to the public meaning of the words as of when I signed. Hertz cannot, in other words, cite the original meaning of the contract to try to fob off on me a car that has no seatbelts. That might have been "safe" in 1953, but it is not within the reasonable public meaning of the word, now.

By extension, we should reject Scalia's claim that the Constitution today permits public flogging because that would not have been considered among the "cruel and unusual punishments" banned by the 8th Amendment at the time of its ratification. Instead, we should look for the plain, present, public meaning of those constitutional terms. We--and not the long-dead founders--face the lash. therefore our consent--or lack thereof--should control.

(Justification does rely on consent, by the way, but the relationship is not a black-and-white one. See, Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. 17 (2010). If you're in a rush, you can find a slightly earlier version, download-ready, here.

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The Constitutional Meaning of “Property” and the Rule of Law

Although the U.S. Constitution uses “Property” four times, it nowhere defines the term. What does it mean? I’ve been grappling with that question this summer, and been surprised to find commentators and cases arguing that “Property” counts as different things in different places. On some accounts, for instance, the word means only land in Article IV, § 3, general common law property in the Takings Clause, and all that plus welfare entitlements in the Fourteenth Amendment’s Due Process Clause.

Giving constitutional property so many different definitions threatens the rule of law. An average citizen, using ordinary English, would not likely read “Property” to stand for something different each time the word appears in the Constitution. Yet both leading theories of constitutional interpretation—originalism and “living” constitutionalism—invite that sort of confusion. Both theories avow that the meaning of "Property" or another constitutional term can change from place to place because of historical accidents (in the case of the former) or Supreme Court decisions (in the case of the latter).

I thank my friend and fellow law prof, Eugene Volokh, for discussing some of these matters in an extended email exchange. He recently quoted some of his thoughts about how constitutional words—he uses “Place” and “Law” as examples—can change depending on context. He makes sound observations. In fact, I'll go Eugene’s examples one better. Consider the word, "it," which means "House" in Art. § 5, "Bill" in Art. I, § 7, cl. 2, "Writ of Habeas Corpus" in Art. I, § 9, cl. 2, "State" in Art. I, § 10, cl. 2, and so forth.

We should expect such semantic flux if, as Eugene rightly says, the Constitution is written in ordinary English. Query, though, whether the four appearances of "Property" in the Constitution appear in contexts that give it four (or even, on one accounting, five!) distinct meanings. I think not, though I remain open to persuasion otherwise.

Eugene's observations do nothing to save originalism or living constitutionalism from the charge that they offend the rule of law, however. The rule of law does not suffer if we read words in their constitutional context because ordinary speakers of ordinary English can figure out that “it” means "House" in one place and "Writ of Habeas Corpus" in another. But originalism and living constitutionalism raise a different problem, given that they base constitutional meaning on historical usage (in the first instance) or Supreme Court precedents (in the second). Only specialists in constitutional law—and not even all of them—have the expertise to engage in that sort of decoding process. Did you know, for instance, that “Property” includes government entitlements in the Fourteenth Amendment but not in the Fifth? If so, I doubt you figured it out from reading the Constitution, alone.

How do we fix this problem with both originalism and living constitutionalism? By rejecting those theories for one that gives the Constitution’s text its plain, present, public meaning. For more, see my paper, Graduated Consent in Contract and Tort Law: Toward a Theory of Justification, 61 Case Western L. Rev. 17 (2010), a slightly revised version of the download-ready, Graduated Consent Theory, Explained and Applied, Chapman University School of Law, Legal Studies Research Paper Series, Paper No. 09-13 (March 2009) [PDF format].

Ratification may be necessary to make a Constitutional term effective in the first place, but it is not sufficient to make an original meaning binding on subsequent generations. People today, using ordinary English, almost certainly regard public flogging as unconstitutionally cruel and unusual punishment. In contrast, Justice Scalia has argued that an originalist (such as himself) should (and does) regard public flogging not as unconstitutional but simply, "stupid." That he can offer so tepid a criticism of something almost any citizen would regard as beyond the pale demonstrates the salient gap between an originalist approach and a consent-based one. (Living constitutionalism's abuse of ordinary English makes it susceptible to a similar critique.)

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Copyright Erodes Property℠

Copyrights and patents differ from tangible property in fundamental ways. Economically speaking, copyrights and patents are not rivalrous in consumption; whereas all the world can sing the same beautiful song, for instance, only one person can swallow a cool gulp of iced tea. Legally speaking, copyrights and patents exist only thanks to the express terms of the U.S. Constitution and various statutory enactments. In contrast, we enjoy tangible property thanks to common law, customary practices, and nature itself. Even birds recognize property rights in nests. They do not, however, copyright their songs.

Those represent but some of the reasons I have argued that we should call copyright an intellectual privilege, reserving property for things that deserve the label. Another, related reason: Calling copyright property risks eroding that valuable service mark.

Property as a service mark, like FedEx or Hooters? Yes. Thanks to long use, property has come to represent a distinct set of legal relations, including hard and fast rules relating to exclusion, use, alienation, and so forth. Copyright embodies those characteristics imperfectly, if at all. To call it intellectual property risks confusing consumers of legal services—citizens, attorneys, academics, judges, and lawmakers—about the nature of copyright. Worse yet, it confuses them about the nature of property. The property service mark suffers not merely dilution from copyright's infringing use, but tarnishment, too.

As proof of how copyright threatens to erode property, consider Ben Depooter, Fair Trespass, 111 Col. L. Rev. 1090 (2011). From the abstract:

Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers. . . . This Essay . . . develops a new doctrinal framework for determining the limits of a property owner’s right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of “fair trespass” to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner’s property interest. . . . [T]his novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion.

Although I do not agree with every aspect of Prof. Depooter’s doctrinal analysis, he correctly observes that trespass law includes some fuzzy bits. Nor do I complain about his overall form of argument. It is not a tack I would take, but it was near-inevitable that some legal scholar would eventually argue back from copyright to claim that real property, too, should fall prey to a multi-factor, fact-intensive “fair use” defense. I merely take this opportunity to remind fellow friends of liberty that they can expect more of the same—and more erosion of the property service mark—if they fail to recognize copyrights and patents as no more than intellectual privileges.

[Crossposted at Agoraphilia, Technology Liberation Front, and Intellectual Privilege.]

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