Stephen Hicks, Ph.D.

The death penalty in fifteenth-century Europe

“By the mid-fifteenth century crimes subject to the death penalty … included the following: rebellion, fraud, bigamy, incest, arson, theft, adultery, carrying off a woman against her will, blasphemy, moving signs of property boundaries, attacking someone, high treason, child murder, using dishonest weights and measures, murder, counterfeiting, rape, attempted suicide, striking someone to death, converting to Judaism, treason, having sex with animals, and sorcery.”

That’s quite a list. It comes from pp. 4-5 of Richard Marius’s Martin Luther: The Christian between God and Death (Harvard University Press, 1999). And note the threat of the death penalty for attempted suicide: hmmm ….

The list is in striking contrast to mid-20th century data about the United States, by which time the death penalty was applied almost exclusively to murderers and even then to fewer and fewer of them. Here is Justice William Brennan commenting in the landmark Supreme Court case, Furman v. Georgia from 1972:

“There has been a steady decline in the infliction of this punishment in every decade since the 1930’s, the earliest period for which accurate statistics are available. In the 1930’s, executions averaged 167 per year; in the 1940’s, the average was 128; in the 1950’s, it was 72; and in the years 1960-1962, it was 48. There have been a total of 46 executions since then, 36 of them in 1963-1964. Yet our population and the number of capital crimes committed have increased greatly over the past four decades. The contemporary rarity of the infliction of this punishment is thus the end result of a long-continued decline. That rarity is plainly revealed by an examination of the years 1961-1970, the last 10-year period for which statistics are available. During that time, an average of 106 death sentences was imposed each year. …”

(All of which seems a healthy development — except for that part about letting sorcerers off the hook.)

Kagan, the Supreme Court, and regulated speech

An important editorial in The Washington Times about Elena Kagan, currently Solicitor General and nominee to the Supreme Court. (Thanks to Bob M. for the link.)

The article contains a classic false alternative — “Ms. Kagan’s First Amendment work repeatedly promotes the idea that speech rights are granted by government rather than inherent in the God-given nature of man” (i.e., rights are either made up by the State or made up by God) — but it also gives several suggestive quotations from Kagan’s writings about speech.

‘In a 1996 University of Chicago Law Review article, she argued that speech restrictions are allowable if the government’s “motive” is acceptably nonideological. In dense academic prose, Ms. Kagan openly mused about the merits of “redistribution of expression,” of “neutral regulations of speech … that are justified in terms of achieving diversity” and of “disfavoring [an] idea [to] ‘unskew,’ rather than skew, public discourse.”‘

More: ‘Ms. Kagan wrote that restrictions on corporate speech were based “on the ground that corporate wealth derives from privileges bestowed on corporations by the government. But this argument fails, because individual wealth also derives from government action. … The question in every case is whether the government may use direct regulation of speech to redress prior imbalances.”‘

So Kagan agrees with the old Permission or Concession Theory of the Corporation, i.e., the view that corporations exist only via special permissions or concessions granted by the State, and she combines it with standard affirmative-action-for-speech principles. By contrast, I agree with Stephen Bainbridge and Robert Hessen on the Contractual Theory of the Corporation, i.e., the view that corporations are networks of voluntary contractual relations among individuals that are recognized and protected by the government; and my essay, “Free Speech and Postmodernism,” lays out how the standard arguments for affirmative action are applied by the left and the postmoderns to speech.

Side note: Interesting to ponder that Kagan is for speech restrictions when the motive is non-ideological while those who want to revive the so-called Fairness Doctrine for talk radio and the Internet favor speech restrictions when the motive is ideological. Hmmm … .

We are a long, long way from liberal speech theory.

Update: Professor Lester Hunt: “Kagan’s Disturbing Take on Free Speech.”

Interview with Jeffrey Orduno on law and property rights

On March 30, Jeffrey Orduno spoke at Rockford College on Property Rights and the Law. Mr. Orduno is a Rockford College alum, received his J.D. from John Marshall Law School, and is currently an associate in the law firm at McGreevy Williams, where his practice includes business litigation and transactions, as well as matters related to land use and construction.

Here is my interview with Mr. Orduno after his talk:

The videos are also available at CEE’s site and in a playlist at YouTube.

Jeffrey Orduno to speak on property rights

On Tuesday, March 30, Jeffrey Orduno, J.D., will speak at Rockford College on Property Rights and the Law. Mr. Orduno is an associate in the law firm of McGreevy Williams. He is a Rockford College alum and received his J.D. from John Marshall Law School. His practice includes business litigation and transactions, as well as matters related to land use and construction.

The talk will take place at 7:15 pm in Scarborough 204. All who are interested may attend (which is not necessarily to imply that those who are not interested may not attend.)

The image above links to a jpeg version of the flyer for all of this semester’s guest speakers. For the pdf, click here. Mr. Orduno’s talk is sponsored by the Center for Ethics and Entrepreneurship.

Timothy Sandefur on law and economic liberty

The Center for Ethics and Entrepreneurship has produced a monograph version of Timothy Sandefur’s To Pursue and Obtain Happiness and Safety, now available at cost at Amazon. In the monograph, Sandefur discusses economic liberty’s up-and-down legal fortunes, as the American founders’ original protections of productive freedom, property and contract rights came under attack during the Progressive era and the New Deal, leading up to our own era of mixed premises and politicized business.

Sandefur spoke last semester at Rockford College on the topic of “Market Entrepreneurs and Political Entrepreneurs: Some Legal and Constitutional Issues.” He is a Senior Staff Attorney at the Pacific Legal Foundation, a public interest law firm based in Sacramento, California, and the author of Cornerstone of Liberty: Property Rights in 21st Century America.

My two-part video interview with Sandefur after his talk is viewable at the Center for Ethics and Entrepreneurship’s site.