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Don't sleep on this excellent Caplan piece. The man is a national treasure.
In "Lawsuits are the Hitman of the State," Caplan makes the case that the Texas "Heartbeat Act" is functionally equivalent to workplace discrimination laws that punish racist or sexist remarks.
(One thing I would be interested to see further discussion from Caplan on is the development of the idea that having a "job" is a "right," but he doesn't go into that in this piece. Basically, the Constitution is a document of enumerated powers, meaning the federal government can't--in theory--do anything the Constitution doesn't explicitly allow it to do. But the judicially-crafted breadth of the Fourteenth Amendment, combined with loose interpretation of the Commerce and Tax-and-Spend clauses, metastasized through the 20th century into today's rather grabby American legal system. This has given rise to the idea that you haven't just got a right to your own labor, but that you have a right to personally profit from other people's capital, at their expense, even if you contribute nothing of value to the enterprise.)
Something I really like about Caplan is how concise he manages to be while making absolutely cutting points:
Precedent on what counts as "government action" is remarkably unhelpful in understanding these things. Georgia v. McCollum (1992) is all about how a defendant in voir dire acts as an organ of the state when they select their own jury, and therefore are forbidden from considering race when seeking to exclude potential jurors. This, even though in virtually every other regard, as Justice O'Connor then noted, "our [past] decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions." Whether any particular action counts as "government action" proscribed by the Fourteenth Amendment does not seem to depend at all on who actually took the action, in other words, but only on how the Court wants the case to come out.
So I think Caplan is dead on, here--the Civil Rights movement basically shredded any kind of principled interpretation of the Fourteenth Amendment, in pursuit of socially-engineered results.
Every time that I think I've read the most tortured, dishonest bullshit from a legal expert seeking to arrive at whatever conclusion that they wanted based on their personal feelings, someone calls to attention an even more ridiculous example. This decision really is breathtaking in its utter mendacity and inclination to oppress people that are on trial. I knew that racial discrimination in voir dire had become illegal at some point, but I didn't realize that it was by declaring that the person who is under attack by the state is conscripted into being an arm of the state themselves! The reasoning for granting the state standing is also remarkable:
Frankly, if this constitutes a basis for standing, I have to say that any claims that a litigant ever lacks standing are bullshit, always and forever. If a defendant selecting a jury that is more racially favorable to them constitutes a "concrete injury" to the state on the basis that the state represents all citizens, this is a fully general argument for state standing in every possible example I can think of. I'm sure some brilliant legal mind can explain why that's definitely not the case and my blunt response is that they're simply lying.
Normal people routinely reason backwards from their preferred conclusion, and judges are no different. Unfortunately their word is often final, so tough shit. This has been and remains the status quo, and wordy legal analysis can often just be a figleaf facade to obfuscate the real reasons a judge wants to rule a certain way. For example much of 19th century UK law used the generic 'he' pronoun but Parliament passed the Interpretation Act in 1850 that said "Words importing the Masculine Gender shall be deemed and taken to include Females." [So does that mean when the law said that "Every Man shall ... be entitled to be registered as a Voter" meant women could vote? LOL of course not. Ok, so that does that mean a female tavern owner could not be convicted of harboring a prostitute because the law only said 'he'? LOL of course not. They can do what they want because fuck you that's why.
Sometimes judges get caught in an inescapable vice they just can't get out, like the time the 9th Circuit was forced to rule that second-degree murder was not a crime of violence.
[OK, it's slightly more complicated than that. The technical explanation is that under the federal sentencing guidelines, you would get extra time imposed if one of your prior convictions was a "crime of violence", which was defined as a crime that either was "murder" (generically defined) or at least had an element of use of force. The problem is that under some state law, you could be convicted of "felony murder", which does not require use of force, and also does not meet the "generic" definition of "murder".]
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