Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [58:45-63:49]

which is a position that I can understand if there were a generalized Chernobyl would we say everybody has to give bone marrow transplant to those who need them when we draft people in the army we say your body isn't yours it belongs to the state so I want to see whether somebody is genuinely saying fetal life is something I care about the others life somebody who is like a Marxist or a early Christian from each according to his ability to each according to his utility functions and modifying that for purposes of a lawyer economist the some whether a person really is saying that if they are saying that then I've got to think about whether this is an infringement on liberty which is so fundamental or which I can find in the constitution so that I can say no or not but when it is you don't own your body only because it's you who have to give it up but not someone else that's when I have problems because that's like taking a part and you know it's not people who want the park say I hate the park owners the land owners they like the park so long as they don't need to pay for it so people can be perfectly all four fetal life so long as they don't have to bear the burden and I want or are can before test against terrorism so long as they don't have to be searched so what I want to do is try to create situations in which we see how serious people are about this infringement about this infringement and I should say that we respect to abortion that of course was Ruth Bader Ginsburg's position long before I mean she didn't like Blackman's position which was instead a due process position in Blackman said the fetus is not a person for purposes of our constitution that made everybody angry because it is our constitution not yours and it's not a person due process Ginsburg and I in some of my early writings if you read my book ideals beliefs attitude in the law I said something about the issue is a discrimination issue the issue is a discrimination issue and one of saying do we really want it if we have to go thank you so much Judge there was a wonderful talk I see two different strands I mean so one important strand which we just came back to now is that by asking people to run the thought experiment of compensation right in a way we're testing for how serious they are we're testing in a way for the intensity of the preference but that's different from having an actual digitally administerable compensation requirement I mean the problem with with pushing compensation beyond compensation for real property is having a baseline I mean I think now about I mean the clearest example recently of the need for compensation is the clean power plan right this is a wonderful plan it's required to save the word the planet on the other hand right moving to millions of people in West Virginia and in cold country are going to be harmed by it right and you know I think it's a it's a very plausible point that the policy process should take compensation I don't think the Supreme Court's in a position to require compensation for coal miners in West Virginia because it's the clean power plan in part because we don't have a regulatory baseline a great scholar not a yearly cast Sunstein made the point that if we're going to have a regulatory taking doctrine we're going to have to put in place a baseline and what would be the baseline in action remember I began this lecture by saying I'm speaking as a scholar not as a judge and I mean that seriously I'm making a point which is an academic point and a theoretical point how and where and to what degree one can operate it in practice and where it should be done is a very different thing and when I put on my judges hat I sometimes say now some scholars say such but of course we pay no attention to them and I usually cite myself and you know there's something very important in that distinction what you say is absolutely right and that comes back to Washington D. Davis it comes back to when it is practical how to do it where it is so