Saturday, July 12, 2003
Holmes: Orin Kerr has some notable quotables from Justice Holmes. I�ve always been bothered by these. Holmes may have had a few pithy sayings, but the man was a monster, and many of his other notable quotables bear that out. How about �All my life I have sneered at the natural rights of man.� Letter to Harold Laski, (Sept. 15, 1916) in 1 Holmes-Laski Letters 21 (M. Howe ed., 1953). Or (recently quoted on Legal Theory), �the State has the power and constitutional right arbitrarily to exclude the plaintiff without other reason than that such is its will.� Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 434 (1926). And then there�s the passage I recently noted from Walter Berns, commenting on Holmes� statement that �If my fellow citizens want to go to Hell, I will help them. It�s my job.� As Berns noted, �[i]t is not clear where he picked up that idea, but it could not have been from anything written by the Framers. Their view was that the justices were to be �faithful guardians of the Constitution [even] where legislative invasions of it had been instigated by the major voice of the community.��
We all know about the �shouting fire in a crowded theater� argument, right? Your right to free speech, Holmes said, can be shut down when it poses a �clear and present danger� to the operations of the state. But what were the facts of Shenck v. United States, 249 U.S. 47 (1919)? The defendant was handing out pamphlets explaining people�s rights when called before draft boards, and arguing that the draft was unconscionable. Holmes, so-called defender of free speech, was saying that the state could shut down anything that threatened its power to send unwilling people to die in wars. Holmes� rejection of natural law is also reflected in his dictum that sovereign immunity embodies �the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.� Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).
Then, of course, there�s the well-known �It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.� Buck v. Bell, 274 U.S. 200, 207 (1927).
As H.L. Mencken said in his great article on Holmes, �[t]he weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct.... The typical lawmaker of today is a man wholly devoid of principle�a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.� H.L. Mencken, A Mencken Chrestomathy 260-61 (H.L. Mencken ed., 1962). If Holmes� views were generally accepted, Mencken wrote, �there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.� Id. at 260.
Another contemporary admirer put it this way: �Justice Holmes came to the bench in 1882, when the transition from individualism to collectivism in England was in progress.... [He] was too learned in the history of the law to be blind to the fact that the socialistic trend in American political thought would finally demand extensive paternal legislation in no uncertain terms; and that when this demand became strong enough serious consequences might follow the failure of the courts to acquiesce.... [T]he necessity for the establishment of a benevolent attitude towards social reform was apparent...[yet] the Constitution was regarded as almost immutable.... [N]o further [Amendment] might be looked for short of a popular upheaval.
�Next to amendment of the Constitution, the most feasible means of giving validity to new principles was to change the interpretation of the provisions under which the inevitable social legislation would be held invalid. �Liberty of contract� and the broad powers of review assumed by the courts under the 5th and 14th Amendments were the elements which barred the way to reform,�and it is against these interpretations that Justice Holmes� most significant attacks have been directed.� Dorsey Richardson, Constitutional Doctrines of Justice Oliver Wendell Holmes 41 (1924) (footnote omitted).
Talk about lawless judging.
We all know about the �shouting fire in a crowded theater� argument, right? Your right to free speech, Holmes said, can be shut down when it poses a �clear and present danger� to the operations of the state. But what were the facts of Shenck v. United States, 249 U.S. 47 (1919)? The defendant was handing out pamphlets explaining people�s rights when called before draft boards, and arguing that the draft was unconscionable. Holmes, so-called defender of free speech, was saying that the state could shut down anything that threatened its power to send unwilling people to die in wars. Holmes� rejection of natural law is also reflected in his dictum that sovereign immunity embodies �the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.� Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).
Then, of course, there�s the well-known �It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.� Buck v. Bell, 274 U.S. 200, 207 (1927).
As H.L. Mencken said in his great article on Holmes, �[t]he weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct.... The typical lawmaker of today is a man wholly devoid of principle�a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.� H.L. Mencken, A Mencken Chrestomathy 260-61 (H.L. Mencken ed., 1962). If Holmes� views were generally accepted, Mencken wrote, �there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.� Id. at 260.
Another contemporary admirer put it this way: �Justice Holmes came to the bench in 1882, when the transition from individualism to collectivism in England was in progress.... [He] was too learned in the history of the law to be blind to the fact that the socialistic trend in American political thought would finally demand extensive paternal legislation in no uncertain terms; and that when this demand became strong enough serious consequences might follow the failure of the courts to acquiesce.... [T]he necessity for the establishment of a benevolent attitude towards social reform was apparent...[yet] the Constitution was regarded as almost immutable.... [N]o further [Amendment] might be looked for short of a popular upheaval.
�Next to amendment of the Constitution, the most feasible means of giving validity to new principles was to change the interpretation of the provisions under which the inevitable social legislation would be held invalid. �Liberty of contract� and the broad powers of review assumed by the courts under the 5th and 14th Amendments were the elements which barred the way to reform,�and it is against these interpretations that Justice Holmes� most significant attacks have been directed.� Dorsey Richardson, Constitutional Doctrines of Justice Oliver Wendell Holmes 41 (1924) (footnote omitted).
Talk about lawless judging.
Yet more fun cases: Some other great frivolous cases are collected in Hersey v. Asher, 593 F. Supp. 441, 443-444 (W.D. Mo. 1983):
In Mann v. Leeke, 73 F.R.D. 264 (D.S.C.1974), a prisoner brought a civil rights action alleging cruel and unusual punishment in permitting female personnel to work in the environment of male prisoners because the female personnel stimulated the prisoners� sexual drives to their frustration.
Gordon v. Secretary of State of New Jersey, 460 F.Supp. 1026 (D.N.J. 1978), involved a prisoner that filed an action charging that he was denied the office of the Presidency of the United States because of his illegal incarceration in jail.
In Searight v. State of New Jersey, 412 F.Supp. 413 (D.C.N.J. 1976), a prisoner filed a civil rights suit alleging that the defendants unlawfully injected him in the left eye with a radium electric beam and that, as a result, someone now talks to him in the inside of his brain. Dismissing the case on other grounds, that court nevertheless considered whether plaintiff�s claim fell under the sole jurisdiction of the Federal Communications Commission as a presumably unlicensed radio communication and offered plaintiff the practical suggestion that he could block the broadcast to the antenna in his brain by simply grounding his antenna with the use of a paperclip chain extending from the back of the plaintiff�s trousers to the floor....
A case which represents the true nature of the beast which has been created is Kent Norman v. Ronald Reagan, 95 F.R.D. 476 (D.Or. 1982). There, a prisoner filed a civil rights action alleging that the defendant Ronald Reagan had caused him �civil death without legislation.� Plaintiff demanded a jury trial in federal court for parking fines assessed by a local municipality. Plaintiff also sought an injunction against �White Line Fevers from Mars� which was, allegedly, a fruit company which shipped marijuana and cocaine in �fruit boxes� for Mother�s Day. Plaintiff also requested social security payments. Relying on 28 U.S.C. � 1915(d), the district court properly dismissed the action as frivolous. The Ninth Circuit Court of Appeals disagreed and reversed.
Neither has this Court been safe from the deluge. One prisoner has filed over five hundred separate cases in this Court. Cases collected in Green v. Jenkins, 80 F.R.D. 686 (W.D.Mo. 1978). Federal prisoners, who were all Native American Indians, filed an action alleging that prison officials deprived them of their right to freedom of religion because the plaintiffs were not allowed to smoke �sweet grass� in their peace pipes. Mathes v. Carlson, 534 F.Supp. 226 (W.D.Mo. 1982). And recently, a prisoner filed a civil rights action in a sister division of this Court because the barbecued ribs served by the prison at dinner were not as meaty as they should have been.
In Mann v. Leeke, 73 F.R.D. 264 (D.S.C.1974), a prisoner brought a civil rights action alleging cruel and unusual punishment in permitting female personnel to work in the environment of male prisoners because the female personnel stimulated the prisoners� sexual drives to their frustration.
Gordon v. Secretary of State of New Jersey, 460 F.Supp. 1026 (D.N.J. 1978), involved a prisoner that filed an action charging that he was denied the office of the Presidency of the United States because of his illegal incarceration in jail.
In Searight v. State of New Jersey, 412 F.Supp. 413 (D.C.N.J. 1976), a prisoner filed a civil rights suit alleging that the defendants unlawfully injected him in the left eye with a radium electric beam and that, as a result, someone now talks to him in the inside of his brain. Dismissing the case on other grounds, that court nevertheless considered whether plaintiff�s claim fell under the sole jurisdiction of the Federal Communications Commission as a presumably unlicensed radio communication and offered plaintiff the practical suggestion that he could block the broadcast to the antenna in his brain by simply grounding his antenna with the use of a paperclip chain extending from the back of the plaintiff�s trousers to the floor....
A case which represents the true nature of the beast which has been created is Kent Norman v. Ronald Reagan, 95 F.R.D. 476 (D.Or. 1982). There, a prisoner filed a civil rights action alleging that the defendant Ronald Reagan had caused him �civil death without legislation.� Plaintiff demanded a jury trial in federal court for parking fines assessed by a local municipality. Plaintiff also sought an injunction against �White Line Fevers from Mars� which was, allegedly, a fruit company which shipped marijuana and cocaine in �fruit boxes� for Mother�s Day. Plaintiff also requested social security payments. Relying on 28 U.S.C. � 1915(d), the district court properly dismissed the action as frivolous. The Ninth Circuit Court of Appeals disagreed and reversed.
Neither has this Court been safe from the deluge. One prisoner has filed over five hundred separate cases in this Court. Cases collected in Green v. Jenkins, 80 F.R.D. 686 (W.D.Mo. 1978). Federal prisoners, who were all Native American Indians, filed an action alleging that prison officials deprived them of their right to freedom of religion because the plaintiffs were not allowed to smoke �sweet grass� in their peace pipes. Mathes v. Carlson, 534 F.Supp. 226 (W.D.Mo. 1982). And recently, a prisoner filed a civil rights action in a sister division of this Court because the barbecued ribs served by the prison at dinner were not as meaty as they should have been.
Still more fun cases: And don�t miss out on the fun at God Juanita Grier v. Ronald Reagan, et al., a delightful, though unpublished, decision which you can access at 1986 WL 3948. (Thanks to Sharon Mathew for the pointer.)
More fun cases: Then, of course, there�s the �Motion to Kiss My Ass� case, Washington v. Alaimo, 934 F.Supp. 1395 (S.D.Ga. 1996), in which the plaintiff filed a ��Motion to Kiss My Ass� (Doc. 107) in which he moved �all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother fucker you.��
�This Court gave Plaintiff until April 25, 1996, to respond and specifically warned: �Failure to comply with this Order will result in dismissal of this case.� Plaintiff has appealed the show-cause order to the United States Court of Appeals for the Eleventh Circuit. As the April 5 Order was not a final order, Plaintiff's appeal is an interlocutory appeal and, as such, this Court retains jurisdiction over the parties and matters in this case. 28 U.S.C. � 1292(b). As of the date indicated below, Plaintiff has not responded to the show-cause order. Therefore, this Court DISMISSES WITH PREJUDICE the above-captioned case for Plaintiff�s complete disregard of and noncompliance with an explicit court order.... All outstanding motions are hereby rendered MOOT.�
Id. at 1396.
�This Court gave Plaintiff until April 25, 1996, to respond and specifically warned: �Failure to comply with this Order will result in dismissal of this case.� Plaintiff has appealed the show-cause order to the United States Court of Appeals for the Eleventh Circuit. As the April 5 Order was not a final order, Plaintiff's appeal is an interlocutory appeal and, as such, this Court retains jurisdiction over the parties and matters in this case. 28 U.S.C. � 1292(b). As of the date indicated below, Plaintiff has not responded to the show-cause order. Therefore, this Court DISMISSES WITH PREJUDICE the above-captioned case for Plaintiff�s complete disregard of and noncompliance with an explicit court order.... All outstanding motions are hereby rendered MOOT.�
Id. at 1396.
Fun cases: Will Baude posted a link to Bradshaw v. Unity Marine Corp., Inc., 147 F.Supp.2d 668, 670-72 (S.D.Tex. 2001), which is absolutely hilarious, but even better is my favorite reported case of all time, United States ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa. 1971), which is reproduced in its entirety below (with �No Claim to Orig. U.S. Govt. Works�):
MEMORANDUM ORDER
WEBER, District Judge.
Plaintiff, alleging jurisdiction under 18 U.S.C. � 241, 28 U.S.C. � 1343, and 42 U.S.C. � 1983 prays for leave to file a complaint for violation of his civil rights in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff�s downfall.
Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.
We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff�s complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official reports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time.
If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.
We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.
For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis.
It is ordered that the complaint be given a miscellaneous docket number and leave to proceed in forma pauperis be denied.
Those interested in this area of the law should check out Charles Yablon, Suing The Devil: A Guide For Practitioners, 86 Va. L. Rev. 103 (2000).
MEMORANDUM ORDER
WEBER, District Judge.
Plaintiff, alleging jurisdiction under 18 U.S.C. � 241, 28 U.S.C. � 1343, and 42 U.S.C. � 1983 prays for leave to file a complaint for violation of his civil rights in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff�s downfall.
Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.
We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff�s complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official reports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time.
If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.
We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.
For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis.
It is ordered that the complaint be given a miscellaneous docket number and leave to proceed in forma pauperis be denied.
Those interested in this area of the law should check out Charles Yablon, Suing The Devil: A Guide For Practitioners, 86 Va. L. Rev. 103 (2000).
Friday, July 11, 2003
What�s your point?: A Mr. Richard Feder, of Fort Lee, New Jersey, writes,
�Forgive such a direct question but �Who are you or what precisely is [F]reespace?� I�m trying to reduce the time I spend reading blogs in order to do my own work. And I only came across your blog today. Some, though far from all, blogs have a statement of purpose; yours doesn�t appear to have one. So forgive my asking what purpose(s) Freespace has. Thanks. P.S. I enjoyed your comments about LegalGuy.�
I wrote back,
�What a great question! Freespace is just a personal blog for my musings. I write about whatever hits my mind as interesting, and sometimes I just write as a sort of notebook so that I can go back and get materials I found somewhere and am afraid I�ll lose (such as my May Swenson poem). I�m a libertarian lawyer and I work in the public interest field, but it is my blog only, and many of the things I say are not opinions shared by my colleagues. So it�s really just my own views on various things, and tends to often be about law. But I try to be as eclectic as possible.�
You can learn more about me here, and here�s my C.V.
�Forgive such a direct question but �Who are you or what precisely is [F]reespace?� I�m trying to reduce the time I spend reading blogs in order to do my own work. And I only came across your blog today. Some, though far from all, blogs have a statement of purpose; yours doesn�t appear to have one. So forgive my asking what purpose(s) Freespace has. Thanks. P.S. I enjoyed your comments about LegalGuy.�
I wrote back,
�What a great question! Freespace is just a personal blog for my musings. I write about whatever hits my mind as interesting, and sometimes I just write as a sort of notebook so that I can go back and get materials I found somewhere and am afraid I�ll lose (such as my May Swenson poem). I�m a libertarian lawyer and I work in the public interest field, but it is my blog only, and many of the things I say are not opinions shared by my colleagues. So it�s really just my own views on various things, and tends to often be about law. But I try to be as eclectic as possible.�
You can learn more about me here, and here�s my C.V.
(Indirect) Fame!: Eugene Volokh has more details on Guinn courtesy of Greg Broderick, my coauthor on the amicus brief.
Thursday, July 10, 2003
Guinn v. Legislature: Eugene Volokh hits the nail on the head with regard to the Guinn decision, in which I helped file an amicus brief. (Also more here and here.) Aside from his point about the Court ordering the Legislature to violate the constitution, there are at least three other problems with the decision.
1) It has serious separation-of-powers implications, especially given the fact that the Nevada Constitution contains a specific Separation of Powers Clause. The court is more or less ordering the legislature to pass a law, by writ of mandamus.
2) It totally ignores the common law immunity of legislatures from being ordered about by the Executive. This is an important traditional protection dating back to the days of Parliament, which was instituted to enable legislators to debate freely, without intimidation from other branches of government.
3) It ignores the fact that the Nevada Constitution sets forth an exclusive method for passing bills�a �finely wrought� procedure a la Clinton v. City of New York. Now there�s a new method for passing laws: by writ!
None of these issues were so much as mentioned by the Court�s opinion.
You can read the Pacific Legal Foundation�s amicus brief opposing the writ here.
1) It has serious separation-of-powers implications, especially given the fact that the Nevada Constitution contains a specific Separation of Powers Clause. The court is more or less ordering the legislature to pass a law, by writ of mandamus.
2) It totally ignores the common law immunity of legislatures from being ordered about by the Executive. This is an important traditional protection dating back to the days of Parliament, which was instituted to enable legislators to debate freely, without intimidation from other branches of government.
3) It ignores the fact that the Nevada Constitution sets forth an exclusive method for passing bills�a �finely wrought� procedure a la Clinton v. City of New York. Now there�s a new method for passing laws: by writ!
None of these issues were so much as mentioned by the Court�s opinion.
You can read the Pacific Legal Foundation�s amicus brief opposing the writ here.
Privileges or Immunities: Dustin, at Legalguy, asks �How did �liberty� suddenly become a �privilege� or �immunity?� As noted earlier, the Constitution does not contain a broad right to liberty or privacy or whatever anywhere�. [T]he Privileges or Immunities Clause�contains no substantive protections itself�.�
Well, of course, the second sentence begs the question, since the point in debate is whether liberty is protected under the Constitution. (Sad, I think, that that is still at issue.) But it is clear that Dustin is unfamiliar with the original meaning of the term �privileges or immunities.� But he can find more information on the meaning of the Privileges or Immunities Clause here, or here, or here, or here, or here, or here, or here, or here. See further Trisha Olson, The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment, 48 Ark. L. Rev. 347 (1995); Kenyon Bunch, The Original Understanding of the Privileges and Immunities Clause, 10 Seton Hall Const. L.J. 321 (2000); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992). In short, the P&I clause was intended to preserve our natural rights against state encroachment.
(Incidentally, it can be somewhat misleading that the phrase includes the word �privileges� which we today consider to be the opposite of a �right.� This was not the sense in which the authors of the clause used it. The term �privileges and immunities,� as Justice Thomas noted, is actually quite old, and was used to refer to what we call rights.)
Update: See also Clarence Thomas, The Higher Law Background of The Privileges or Immunities Clause of The Fourteenth Amendment, 12 Harv. J. Law & Pub. Pol�y 63 (1989), and James W. Fox Jr., Re-Readings And Misreadings: Slaughter-House, Privileges Or Immunities, And Section Five Enforcement Powers, 91 Ky. L.J. 67 (2002).
Well, of course, the second sentence begs the question, since the point in debate is whether liberty is protected under the Constitution. (Sad, I think, that that is still at issue.) But it is clear that Dustin is unfamiliar with the original meaning of the term �privileges or immunities.� But he can find more information on the meaning of the Privileges or Immunities Clause here, or here, or here, or here, or here, or here, or here, or here. See further Trisha Olson, The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment, 48 Ark. L. Rev. 347 (1995); Kenyon Bunch, The Original Understanding of the Privileges and Immunities Clause, 10 Seton Hall Const. L.J. 321 (2000); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992). In short, the P&I clause was intended to preserve our natural rights against state encroachment.
(Incidentally, it can be somewhat misleading that the phrase includes the word �privileges� which we today consider to be the opposite of a �right.� This was not the sense in which the authors of the clause used it. The term �privileges and immunities,� as Justice Thomas noted, is actually quite old, and was used to refer to what we call rights.)
Update: See also Clarence Thomas, The Higher Law Background of The Privileges or Immunities Clause of The Fourteenth Amendment, 12 Harv. J. Law & Pub. Pol�y 63 (1989), and James W. Fox Jr., Re-Readings And Misreadings: Slaughter-House, Privileges Or Immunities, And Section Five Enforcement Powers, 91 Ky. L.J. 67 (2002).
Guinn v. Legislature: Today, the Nevada Supreme Court granted the writ petition which I blogged about here. It�s a very remarkable ruling, I think; the Court annulled the state Constitution�s provision that a 2/3 vote is required to increase taxes on the grounds that it stood on the way of the Legislature�s duty to fund schools.
Barnett and Lawrence: Lawrence Solum pointed to a comment on Randy Barnett�s National Review column about Lawrence v. Texas. Greg Ransom says that Barnett�s argument has �[o]ne problem. The framers gave us a liberty right out of the tradition of British constitutionalism. Barnett and Kennedy are inserting a rationalistic post-Millian and post-Kantian liberty right�one that imagines that �morality is the product of our reason��which it isn�t, and a view which the framers had no part in making a part of American jurisprudence.� But this is just the central point of contention. Did the framers of our Constitution�who declared that they were no longer Britons, on the basis of the laws of nature and of nature�s god�really make no break with British constitutionalism, or tradition- or faith-based morality, in favor of a morality of reason?
St. George Tucker, whose edition of Blackstone was the most important edition of the early years in American history, certainly thought there was a difference. He criticized Blackstone, writing that his traditionalism and authoritarianism did not hold in the United States; the American Revolution �has formed a new epoch in the history of civil institutions by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers� like Locke. 1 St. George Tucker, ed., Blackstone�s Commentaries App. Note A at 4 (New York: Kelly, 1969) (1803).
George Washington agreed, writing that �the foundation of our Empire were not laid in the gloomy age of Ignorance and Superstition, but at an Epocha when the rights of mankind were better understood and more clearly defined than at any former period, the researches of the human mind, after social happiness, have been carried to a great extent, the Treasures of knowledge, acquired by the labours of Philosophers, Sages, and Legislatures, through long succession of years, are laid open for our use, and their collected wisdom may be happily applied in the Establishment of our forms of government....� Circular to State Governments, June 8, 1783, reprinted in Washington: Writings 516, 517 (J. Rhodehamel, ed., 1997).
And Jefferson denounced �persons [who] inculcate a sanctimonious reverence for the customs of their ancestors; that whatsoever they did, must be done through all time; that reason is a false guide, and to advance under its counsel, in their physical, moral, or political condition, is perilous innovation; that their duty is to remain as their Creator made them, ignorance being safety, and knowledge full of danger...anti-philosophers, who find an interest in keeping things in their present state, who dread reformation, and exert all their faculties to maintain the ascendency of habit over the duty of improving our reason, and obeying its mandates.�
This sound like a bunch of British tradition-mongers to you? What about Madison? He wrote, �[i]s it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness.�
And Alexander Hamilton said, �The Sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.�
All of this talk about British constitutional whoosiwatsit reminds me of a passage in one of Harry Jaffa�s books, where he notes that Jeanne Kirkpatrick claimed that the Americans were fighting for the traditional rights as Englishmen. Yet the Declaration of Independence, continues Jaffa, says these rights come from nature and nature�s God. Does Miss Kirkpatrick think God is an Englishman?
Ransom says that the a morality of reason had �no part in...American jurisprudence� as conceived by the framers. But this is simply untrue. The closest analogy to the Lawrence view in the 18th century would be freedom of religion. Certainly the arguments for illegalizing private, consensual, adult sexual activity are the same arguments that were put forth by those who argued against freedom of religion: it harms society for people to refuse to go to church; a state-controlled religion makes for a stable and moral society, and so forth. But the framers of our political tradition denounced this view. Jefferson famously said that government had no right to control our religious opinions because �our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.�
He acknowledged that some people believed that state-enforced morality was necessary because they thought �that men in numerous associations cannot be restrained within the limits of order and justice, but by forces physical and moral, wielded over them by authorities independent of their will...to constrain the brute force of the people...to fascinate the eyes of the people, and excite in them an humble adoration and submission, as to an order of superior beings.� Letter to William Johnson, June 12, 1823, in 3 The Republic of Letters 1862 (J. Smith ed. 1995). Madison agreed, writing to Jefferson, �Johnson is much indebted to you for your remarks on the definition of parties. The radical distinction between them has always been a confidence of one, and distrust of the other, as to the capacity of Mankind for self Government.� Letter to Thomas Jefferson, June 27, 1823, in id. at 1868.
In his Statute for Religious Freedom, therefore, Jefferson attacked the notion that �the civil magistrate [should] intrude...[into private areas of life] on supposition of their ill tendency,� because this notion �destroys all religious liberty, because [the magistrate] being of course judge of that tendency will make his opinions the rule of judgment....� The true principle, he explained, was that officers of the state may only rightly �interfere [with people�s lives] when principles break out into overt acts against peace and good order.�
The same is true of those who would control our private, consensual, sexual activity on the supposition of their ill tendency. The framers certainly did have �a part� of saying that a morality of reason was the cornerstone of American law. That, indeed, was their greatest accomplishment.
St. George Tucker, whose edition of Blackstone was the most important edition of the early years in American history, certainly thought there was a difference. He criticized Blackstone, writing that his traditionalism and authoritarianism did not hold in the United States; the American Revolution �has formed a new epoch in the history of civil institutions by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers� like Locke. 1 St. George Tucker, ed., Blackstone�s Commentaries App. Note A at 4 (New York: Kelly, 1969) (1803).
George Washington agreed, writing that �the foundation of our Empire were not laid in the gloomy age of Ignorance and Superstition, but at an Epocha when the rights of mankind were better understood and more clearly defined than at any former period, the researches of the human mind, after social happiness, have been carried to a great extent, the Treasures of knowledge, acquired by the labours of Philosophers, Sages, and Legislatures, through long succession of years, are laid open for our use, and their collected wisdom may be happily applied in the Establishment of our forms of government....� Circular to State Governments, June 8, 1783, reprinted in Washington: Writings 516, 517 (J. Rhodehamel, ed., 1997).
And Jefferson denounced �persons [who] inculcate a sanctimonious reverence for the customs of their ancestors; that whatsoever they did, must be done through all time; that reason is a false guide, and to advance under its counsel, in their physical, moral, or political condition, is perilous innovation; that their duty is to remain as their Creator made them, ignorance being safety, and knowledge full of danger...anti-philosophers, who find an interest in keeping things in their present state, who dread reformation, and exert all their faculties to maintain the ascendency of habit over the duty of improving our reason, and obeying its mandates.�
This sound like a bunch of British tradition-mongers to you? What about Madison? He wrote, �[i]s it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness.�
And Alexander Hamilton said, �The Sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.�
All of this talk about British constitutional whoosiwatsit reminds me of a passage in one of Harry Jaffa�s books, where he notes that Jeanne Kirkpatrick claimed that the Americans were fighting for the traditional rights as Englishmen. Yet the Declaration of Independence, continues Jaffa, says these rights come from nature and nature�s God. Does Miss Kirkpatrick think God is an Englishman?
Ransom says that the a morality of reason had �no part in...American jurisprudence� as conceived by the framers. But this is simply untrue. The closest analogy to the Lawrence view in the 18th century would be freedom of religion. Certainly the arguments for illegalizing private, consensual, adult sexual activity are the same arguments that were put forth by those who argued against freedom of religion: it harms society for people to refuse to go to church; a state-controlled religion makes for a stable and moral society, and so forth. But the framers of our political tradition denounced this view. Jefferson famously said that government had no right to control our religious opinions because �our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.�
He acknowledged that some people believed that state-enforced morality was necessary because they thought �that men in numerous associations cannot be restrained within the limits of order and justice, but by forces physical and moral, wielded over them by authorities independent of their will...to constrain the brute force of the people...to fascinate the eyes of the people, and excite in them an humble adoration and submission, as to an order of superior beings.� Letter to William Johnson, June 12, 1823, in 3 The Republic of Letters 1862 (J. Smith ed. 1995). Madison agreed, writing to Jefferson, �Johnson is much indebted to you for your remarks on the definition of parties. The radical distinction between them has always been a confidence of one, and distrust of the other, as to the capacity of Mankind for self Government.� Letter to Thomas Jefferson, June 27, 1823, in id. at 1868.
In his Statute for Religious Freedom, therefore, Jefferson attacked the notion that �the civil magistrate [should] intrude...[into private areas of life] on supposition of their ill tendency,� because this notion �destroys all religious liberty, because [the magistrate] being of course judge of that tendency will make his opinions the rule of judgment....� The true principle, he explained, was that officers of the state may only rightly �interfere [with people�s lives] when principles break out into overt acts against peace and good order.�
The same is true of those who would control our private, consensual, sexual activity on the supposition of their ill tendency. The framers certainly did have �a part� of saying that a morality of reason was the cornerstone of American law. That, indeed, was their greatest accomplishment.
Drug war: Another innocent civilian casualty, totally ignored in the major media.
Pinups: This post from Virginia Postrel reminded me of the new issue of Esquire which features some photos of Jennifer Lopez recreating classic pinup posters from the 40s and 50s. It�s really beautiful: proof that in all the decades that have followed, nobody�s ever beat the classics of female beauty. (Remember Playboy�s 50-anniversary issue? Marilyn Monroe was on the cover. In all that time, they�ve still never found anyone more beautiful. Well, except Charlize�.)
Anyway, the pinups were sexy, without being sleazy; they�re joyful and beautiful and silly, and just the opposite of dirty. My own favorite pinup artist is Earl Moran, who is little known today, but was the first artist to use for a model the girl who came to be known as Marilyn Monroe. Moran�s best work is a series of nudes posed in dark backgrounds that are much more serious than regular pinup work. But they�re hard to find, and I haven�t located the best ones online.
Anyway, the pinups were sexy, without being sleazy; they�re joyful and beautiful and silly, and just the opposite of dirty. My own favorite pinup artist is Earl Moran, who is little known today, but was the first artist to use for a model the girl who came to be known as Marilyn Monroe. Moran�s best work is a series of nudes posed in dark backgrounds that are much more serious than regular pinup work. But they�re hard to find, and I haven�t located the best ones online.
Guinn v. Legislature: The Nevada Supreme Court is expected to announce its ruling at 2pm today in this remarkable case I mentioned earlier.
Eminent domain: Good editorial. (Saw it on How Appealing.)
Wednesday, July 09, 2003
Poetry: I enjoyed this poem at Slate. Usually I don�t care for Slate�s selection of poetry. I�m much more fond of the Sol Poetry Daily at Web Del Sol. The daily picks are made by Joan Houlihan, editor of Perihelion, and a very good poetry critic. (�Very good� means: �I agree with her.�) Check out her brief essay on the �I� in poetry.
Greeks: Check out the Parthenon Frieze (which I saw on No Left Turns).
�Living Constitution�: Jonah Goldberg and Lawrence Solum have been writing about the concept of living constitutionalism. Here�s an interesting trivia point. That phrase appears to have been first used in The Living Constitution by Howard Lee McBain, a book published in 1928, as part of the Worker�s Bookshelf.
It�s a relatively unremarkable book by a Progressivist legal theorist, which I blogged about a few months ago. Shortly after McBain�s book was published, Rexford Tugwell, who would later come to prominence in FDR�s �brain trust,� published an article called �That Living Constitution� in The New Republic, (June 20, 1928) in which he denounced the Supreme Court for �turnin[ing] back the legislative hosts who would encroach upon the privacy of business.� He complained about �[t]he stiffer legal minds of the Supreme Court [who] either still describe industry to themselves in the terms of Adam Smith or...possess a faith in the benevolence of modern business which we cannot share.� Tugwell obviously agreed with Holmes� view as expressed in his Lochner dissent. �For those who are interested in such changes,� concluded Tugwell, �as...securing adequate social insurance, in the greater coordination of industrial affairs by national planning, there remains, apparently, some hope--but only so much as can conceivably be clustered about the possibility of minorities being transformed into majorities by the passage of time or the prescience of Presidents.� Guess he got what he wanted.
It�s a relatively unremarkable book by a Progressivist legal theorist, which I blogged about a few months ago. Shortly after McBain�s book was published, Rexford Tugwell, who would later come to prominence in FDR�s �brain trust,� published an article called �That Living Constitution� in The New Republic, (June 20, 1928) in which he denounced the Supreme Court for �turnin[ing] back the legislative hosts who would encroach upon the privacy of business.� He complained about �[t]he stiffer legal minds of the Supreme Court [who] either still describe industry to themselves in the terms of Adam Smith or...possess a faith in the benevolence of modern business which we cannot share.� Tugwell obviously agreed with Holmes� view as expressed in his Lochner dissent. �For those who are interested in such changes,� concluded Tugwell, �as...securing adequate social insurance, in the greater coordination of industrial affairs by national planning, there remains, apparently, some hope--but only so much as can conceivably be clustered about the possibility of minorities being transformed into majorities by the passage of time or the prescience of Presidents.� Guess he got what he wanted.
Substantive Due Process and libertarians: Dustin at Legalguy makes a long and boring argument that libertarians who rejoice over the decision in Lawrence are focusing only on the results and overlooking a deeper principle which (he says) we ought to shun: namely, substantive due process. (Saw it on How Appealing)
Substantive due process has been the bogeyman of constitutional law at least since the New Deal, and certainly since Robert Bork became the standard bearer of the right. According to these critics, the Due Process Clause of the Fourteenth Amendment contains no substantive component, but only places procedural limitations on deprivations of liberty. As Dustin writes, �the Fourteenth Amendment absolutely does not disallow states from �depriv[ing] any person of life, liberty, or property.� The Constitution only disallows depriving people of such rights �without due process of law� (i.e., without following the laws that the elected officials created).�
But this is a shortsighted view of substantive Due Process. Contrary to the claims of some critics, the Due Process Clause was seen as having a substantive component long before the so-called �Lochner era.� The Due Process Clause was said to derive from the Magna Carta�s �law of the land� clause, which prohibited unjust deprivations of liberty, even if those deprivations were done in a seemingly proper form. See Bernard Seigan, Economic Liberties And The Law (1980) at ch. 2. Thomas Cooley wrote in 1868,
�What then is meant by �due process of law� and �the law of the land....?� The definitions of these terms to be found in the repported cases are so various that some difficulty arises in fixing upon one which shall be accurate, complete in itself, and at the same time applicable to all cases.... No definition, perhaps, is more often quoted than that by Mr. Webster in the Dartmouth College case: �By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land.�� Cooley, Const. Lim. 353-354.
Cooley also quoted from Justice Bronson�s decision in Taylor v. Porter & Ford, 4 Hill. 140 (1843), in which Bronson wrote
�the question does not necessarily turn on the section granting legislative power. The people have added negative words, which should put the matter at rest. �No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.� (Const. Art. 7, � 1.) The words �by the law of the land,� as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense. The people would be made to say to the two houses, �You shall be vested with �the legislative power of the state;� but no one �shall be disfranchised, or deprived of any of the rights or privileges� of a citizen, unless you pass a statute of that purpose:� in other words, �You shall not do the wrong, unless you choose to do it.� The section was taken with some modifications from a part of the 29th chapter of Magna Charta, which provided, that no freeman should be taken, or imprisoned, or be disseised of his freehold &c., but by lawful judgment of his peers, or by the law of the land. Lord Coke in his commentary upon this statute says, that these words, �by the law of the land,� mean �by the due course and process of law;� which he afterwards explains to be, �by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law.� (2 Inst. 45, 50.)�
It is true that the Due Process Clause has been stretched and exaggerated since the Slaughter House Cases erased the Privileges or Immunities Clause from the Constitution. The Privileges or Immunities Clause was intended to be the primary protector of individual rights under the Amendment, but when it was eradicated, the Court began to protect individual rights under the Due Process Clause instead. I�ve long advocated P&I reform, but that is not to say that the Court was entirely wrong to find substantive protection for rights under the Due Process Clause. The merely procedural validity of a law does not render it �due process of law.� As Hadley Arkes has put it, under Dustin�s reading,
�[p]romulgation is all. When the law is not tested for its substance, but merely for its enactment, any order may claim the standing of law. So we think that a law has made injustice binding? Surely there can be no such problem. The presence of the law removes the injustice..... [T]his arguemnt [i]s unalloyed legal positivism, and so it merely offer[s] a stylish way of clothing the power of the state with the appearance of lawfulness.... As Daniel Weebster remarked in one of his briefs, �We come before the Court alleging the law to be void as unconstitutional; they stop the inquiry by opposing to us the law itself. Is this logical?�� Hadley Arkes, The Return of George Sutherland 223 (1994). Arkes brilliantly illustrates this with the figure of the dictator from Woody Allen�s movie Bananas, �who simply proclaimed that �from now on, all girls under sixteen are over sixteen.�� Id.
Dustin�s allegation that Due Process is satisfied whenever the legislature follows the rule book when it deprives us of our rights may be popular, but it overlooks the thorny questions, such as that in Lawrence, and it ignores the views of the framers of the Fourteenth Amendment. By the time that Amendment was written, substantive due process was well understood and regarded as legitimate. See further Anonymous, 2 N.C. 28, 30 (1794); Hoke v. Henderson, 15 N.C. 1, 7-8 (1833).
Due Process necessarily includes a substantive component if one recognizes the possibility that a law can violate the Constitution. �The Due Process Clause says that no one may be deprived of life, liberty, or property without due process of law. The clause is violated if a legislative act that is not �legislation� and therefore not a �law� causes the deprivation.� Stephen A. Siegel, Lochner Era Jurisprudence And The American Constitutional Tradition, 70 N.C.L. Rev. 1, 58 (1991). The argument that Due Process refers solely to procedure runs the risk of�or, in Bork�s case, revels in�ignoring the possibility of majority tyranny. But then, as Alexis de Tocqueville remarked,
�What lawyers love above all things is an ordered life, and authority is the greatest guaranty of order... [A]lthough they value liberty, they generally rate legality as far more precious; they are less afraid of tyranny than of arbitrariness, and provided that it is the lawgiver himself who is responsible for taking away men�s independence, they are more or less content.� Alexis de Tocqueville, Democracy in America 266 (J. Mayer ed., G. Lawrence trans. Harper Perennial 1988) (1848).
Libertarianism, however, while it is inherently anti-royalist (because it is based on the equality of all people before the law), is not inherently pro-democracy. Heck, Bastiat�s The Law, a classic libertarian work, is actually a pamphlet against universal suffrage! Libertarianism focuses less on the process by which legislation is created than on the substance of that legislation. If a law is created in a way that is less than �democratic,� yet which protects individual liberty, this does not offend libertarian sensibilities. (The perfect example of this is the Constitution itself!) On the other hand, if a law violates an individual�s rights, it does not matter how �democratic� the procedure by which it was created. Like Thomas Jefferson we believe that �an elective despotism was not the government we fought for.� So long as government does not exceed its legitimate bounds, the particular mechanism by which it exists is relatively unimportant (although, of course, we prefer democracy since, as a practical matter, it tends to prevent the accumulation of power, and so on).
Substantive due process has been the bogeyman of constitutional law at least since the New Deal, and certainly since Robert Bork became the standard bearer of the right. According to these critics, the Due Process Clause of the Fourteenth Amendment contains no substantive component, but only places procedural limitations on deprivations of liberty. As Dustin writes, �the Fourteenth Amendment absolutely does not disallow states from �depriv[ing] any person of life, liberty, or property.� The Constitution only disallows depriving people of such rights �without due process of law� (i.e., without following the laws that the elected officials created).�
But this is a shortsighted view of substantive Due Process. Contrary to the claims of some critics, the Due Process Clause was seen as having a substantive component long before the so-called �Lochner era.� The Due Process Clause was said to derive from the Magna Carta�s �law of the land� clause, which prohibited unjust deprivations of liberty, even if those deprivations were done in a seemingly proper form. See Bernard Seigan, Economic Liberties And The Law (1980) at ch. 2. Thomas Cooley wrote in 1868,
�What then is meant by �due process of law� and �the law of the land....?� The definitions of these terms to be found in the repported cases are so various that some difficulty arises in fixing upon one which shall be accurate, complete in itself, and at the same time applicable to all cases.... No definition, perhaps, is more often quoted than that by Mr. Webster in the Dartmouth College case: �By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land.�� Cooley, Const. Lim. 353-354.
Cooley also quoted from Justice Bronson�s decision in Taylor v. Porter & Ford, 4 Hill. 140 (1843), in which Bronson wrote
�the question does not necessarily turn on the section granting legislative power. The people have added negative words, which should put the matter at rest. �No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.� (Const. Art. 7, � 1.) The words �by the law of the land,� as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense. The people would be made to say to the two houses, �You shall be vested with �the legislative power of the state;� but no one �shall be disfranchised, or deprived of any of the rights or privileges� of a citizen, unless you pass a statute of that purpose:� in other words, �You shall not do the wrong, unless you choose to do it.� The section was taken with some modifications from a part of the 29th chapter of Magna Charta, which provided, that no freeman should be taken, or imprisoned, or be disseised of his freehold &c., but by lawful judgment of his peers, or by the law of the land. Lord Coke in his commentary upon this statute says, that these words, �by the law of the land,� mean �by the due course and process of law;� which he afterwards explains to be, �by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law.� (2 Inst. 45, 50.)�
It is true that the Due Process Clause has been stretched and exaggerated since the Slaughter House Cases erased the Privileges or Immunities Clause from the Constitution. The Privileges or Immunities Clause was intended to be the primary protector of individual rights under the Amendment, but when it was eradicated, the Court began to protect individual rights under the Due Process Clause instead. I�ve long advocated P&I reform, but that is not to say that the Court was entirely wrong to find substantive protection for rights under the Due Process Clause. The merely procedural validity of a law does not render it �due process of law.� As Hadley Arkes has put it, under Dustin�s reading,
�[p]romulgation is all. When the law is not tested for its substance, but merely for its enactment, any order may claim the standing of law. So we think that a law has made injustice binding? Surely there can be no such problem. The presence of the law removes the injustice..... [T]his arguemnt [i]s unalloyed legal positivism, and so it merely offer[s] a stylish way of clothing the power of the state with the appearance of lawfulness.... As Daniel Weebster remarked in one of his briefs, �We come before the Court alleging the law to be void as unconstitutional; they stop the inquiry by opposing to us the law itself. Is this logical?�� Hadley Arkes, The Return of George Sutherland 223 (1994). Arkes brilliantly illustrates this with the figure of the dictator from Woody Allen�s movie Bananas, �who simply proclaimed that �from now on, all girls under sixteen are over sixteen.�� Id.
Dustin�s allegation that Due Process is satisfied whenever the legislature follows the rule book when it deprives us of our rights may be popular, but it overlooks the thorny questions, such as that in Lawrence, and it ignores the views of the framers of the Fourteenth Amendment. By the time that Amendment was written, substantive due process was well understood and regarded as legitimate. See further Anonymous, 2 N.C. 28, 30 (1794); Hoke v. Henderson, 15 N.C. 1, 7-8 (1833).
Due Process necessarily includes a substantive component if one recognizes the possibility that a law can violate the Constitution. �The Due Process Clause says that no one may be deprived of life, liberty, or property without due process of law. The clause is violated if a legislative act that is not �legislation� and therefore not a �law� causes the deprivation.� Stephen A. Siegel, Lochner Era Jurisprudence And The American Constitutional Tradition, 70 N.C.L. Rev. 1, 58 (1991). The argument that Due Process refers solely to procedure runs the risk of�or, in Bork�s case, revels in�ignoring the possibility of majority tyranny. But then, as Alexis de Tocqueville remarked,
�What lawyers love above all things is an ordered life, and authority is the greatest guaranty of order... [A]lthough they value liberty, they generally rate legality as far more precious; they are less afraid of tyranny than of arbitrariness, and provided that it is the lawgiver himself who is responsible for taking away men�s independence, they are more or less content.� Alexis de Tocqueville, Democracy in America 266 (J. Mayer ed., G. Lawrence trans. Harper Perennial 1988) (1848).
Libertarianism, however, while it is inherently anti-royalist (because it is based on the equality of all people before the law), is not inherently pro-democracy. Heck, Bastiat�s The Law, a classic libertarian work, is actually a pamphlet against universal suffrage! Libertarianism focuses less on the process by which legislation is created than on the substance of that legislation. If a law is created in a way that is less than �democratic,� yet which protects individual liberty, this does not offend libertarian sensibilities. (The perfect example of this is the Constitution itself!) On the other hand, if a law violates an individual�s rights, it does not matter how �democratic� the procedure by which it was created. Like Thomas Jefferson we believe that �an elective despotism was not the government we fought for.� So long as government does not exceed its legitimate bounds, the particular mechanism by which it exists is relatively unimportant (although, of course, we prefer democracy since, as a practical matter, it tends to prevent the accumulation of power, and so on).
The Centaur: by May Swenson (1919 - 1989). Amy reminded me of this poem yesterday...
The summer that I was ten�
Can it be there was only one
summer that I was ten?
It must have been a long one then�
each day I�d go out to choose
a fresh horse from my stable
which was a willow grove
down by the old canal.
I�d go on my two bare feet.
But when, with my brother�s jack-knife,
I had cut me a long limber horse
with a good thick knob for a head,
and peeled him slick and clean
except a few leaves for the tail,
and cinched my brother�s belt
around his head for a rein,
I�d straddle and canter him fast
up the grass bank to the path,
trot along in the lovely dust
that talcumed over his hoofs,
hiding my toes, and turning
his feet to swift half-moons.
The willow knob with the strap
jouncing between my thighs
was the pommel and yet the poll
of my nickering pony�s head.
My head and my neck were mine,
yet they were shaped like a horse.
My hair flopped to the side
like the mane of a horse in the wind.
My forelock swung in my eyes,
my neck arched and I snorted.
I shied and skittered and reared,
stopped and raised my knees,
pawed at the ground and quivered.
My teeth bared as we wheeled
and swished through the dust again.
I was the horse and the rider,
and the leather I slapped to his rump
spanked my own behind.
Doubled, my two hoofs beat
a gallop along the bank,
the wind twanged in my mane,
my mouth squared to the bit.
And yet I sat on my steed
quiet, negligent riding,
my toes standing the stirrups,
my thighs hugging his ribs.
At a walk we drew up to the porch.
I tethered him to a paling.
Dismounting, I smoothed my skirt
and entered the dusky hall.
My feet on the clean linoleum
left ghostly toes in the hall.
Where have you been? said my mother.
Been riding, I said from the sink,
and filled me a glass of water.
What�s that in your pocket? she said.
Just my knife. It weighted my pocket
and stretched my dress awry.
Go tie back your hair, said my mother,
and Why Is your mouth all green?
Rob Roy, he pulled some clover
as we crossed the field, I told her.
The summer that I was ten�
Can it be there was only one
summer that I was ten?
It must have been a long one then�
each day I�d go out to choose
a fresh horse from my stable
which was a willow grove
down by the old canal.
I�d go on my two bare feet.
But when, with my brother�s jack-knife,
I had cut me a long limber horse
with a good thick knob for a head,
and peeled him slick and clean
except a few leaves for the tail,
and cinched my brother�s belt
around his head for a rein,
I�d straddle and canter him fast
up the grass bank to the path,
trot along in the lovely dust
that talcumed over his hoofs,
hiding my toes, and turning
his feet to swift half-moons.
The willow knob with the strap
jouncing between my thighs
was the pommel and yet the poll
of my nickering pony�s head.
My head and my neck were mine,
yet they were shaped like a horse.
My hair flopped to the side
like the mane of a horse in the wind.
My forelock swung in my eyes,
my neck arched and I snorted.
I shied and skittered and reared,
stopped and raised my knees,
pawed at the ground and quivered.
My teeth bared as we wheeled
and swished through the dust again.
I was the horse and the rider,
and the leather I slapped to his rump
spanked my own behind.
Doubled, my two hoofs beat
a gallop along the bank,
the wind twanged in my mane,
my mouth squared to the bit.
And yet I sat on my steed
quiet, negligent riding,
my toes standing the stirrups,
my thighs hugging his ribs.
At a walk we drew up to the porch.
I tethered him to a paling.
Dismounting, I smoothed my skirt
and entered the dusky hall.
My feet on the clean linoleum
left ghostly toes in the hall.
Where have you been? said my mother.
Been riding, I said from the sink,
and filled me a glass of water.
What�s that in your pocket? she said.
Just my knife. It weighted my pocket
and stretched my dress awry.
Go tie back your hair, said my mother,
and Why Is your mouth all green?
Rob Roy, he pulled some clover
as we crossed the field, I told her.
Non-libertarian south: Good points from Clayton Cramer on the limits on freedom of whites that came along with slavery. (Saw it on the V.C.) An outstanding illustration is the petition crisis of the 1830s, beautifully documented in William Lee Miller�s book Arguing About Slavery, which you all must buy and read. (One of the best books I have ever read.) The petition crisis came when a coalition of southern �fire-eaters� and northern �doughfaces� decided that they didn�t even want to hear about slavery, and devised a way to prohibit the introduction of petitions against slavery in the Congress. For almost ten years, the 70+ year-old Congressman John Quincy Adams almost singlehandedly opposed this �gag rule� in what some have called �the Pearl Harbor of the Civil War.�
Update: Oh, and what about the federal slave code that the southern states (pre-secession) wanted Congress to impose on the nation? The single most intrusive federal police-state program ever devised. And what about the draft? Doughface Libertarians like to say that mean old Lincoln instituted a military draft, but they ignore the fact that Davis instituted a draft on the C.S.A. first.
My Liberty articles on the Civil War (so far) are here, here, and here.
Update: Oh, and what about the federal slave code that the southern states (pre-secession) wanted Congress to impose on the nation? The single most intrusive federal police-state program ever devised. And what about the draft? Doughface Libertarians like to say that mean old Lincoln instituted a military draft, but they ignore the fact that Davis instituted a draft on the C.S.A. first.
My Liberty articles on the Civil War (so far) are here, here, and here.
Tuesday, July 08, 2003
Legitimage Interests (Cont�d): Okay, so I�ve explained why the Court has been reticent to delineate the so-called legitimate state interests. But what do I think is a legitimate state interest?
This is a question that can only be answered by political philosophy�not by economics or any other pursuit. It�s popular modernly to dismiss political philosophy as being hocus-pocus, and particularly to dismiss natural rights theory; commentators trip over themselves in their eagerness to ridicule the natural rights premises on which our Constitution is based. (See, e.g., Carlton F.W. Larson, The Declaration of Independence: A 225th Anniversary Re-Interpretation, 76 Wash. L. Rev. 701, 712 (2001) (�Invoking "natural rights" in a modern law school is about as persuasive as citing Cotton Mather's treatise on witchcraft.�)). This is done under the delusion that �scientific� political science is value-neutral, and thus immune from claims of absolute right and wrong such as lie at the heart of natural rights theory. In fact, this �value freedom� is no kind of freedom at all, but rather, a ludicrous self-contradiction.
Natural rights theory gives us (relatively!) easy answers to the limits of legitimate state interests. There are still rough patches and some genuine debates within the realm of natural rights theory: is there a natural rights theory of abortion, for instance. But even where natural rights theory does not give us specific answers, it provides us with a clear method for approaching the question. This is the form of analysis which Prof. Solum has called �libertarian constitutionalism.� It holds, in essence, that�in Locke�s words��the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law; and is not, as we are told, �a liberty for every man to do what he lists.� For who could be free, when every other man�s humour might domineer over him? But a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.�
Under this theory�which has the added advantage that the framers of our Constitution themselves believed it��our rulers can have authority over such natural rights only as we have submitted to them�. The legitimate powers of government extend to such acts only as are injurious to others.�
The modern welfare state, of course, was built gradually by widening the sphere of alleged �injury to others.� In Munn v. Illinois, for instance, that sphere was widened to allow government to regulate things that were �affected with a public interest.� Then it was widened again in the New Deal to include just about everything. The ��dog-dog, bite pig� theory of causation� which underlies modern commerce clause jurisprudence is a shadow of the concurrent spread of alleged �injury to others� which allowed government�s regulatory authority to expand to the point where it is now�where the very concept of freedom is alien to many Americans. But in the end, those principles were incompatible. Either government exists to run our lives for us, or it exists to protect our right to run our own lives.
Progressivism�the more intellectual facet of Populism, one of the leading prophets of which was Oliver Wendell Holmes�expanded this realm even further. As I write in my forthcoming article on the history of eminent domain, �John Dewey, for instance, denounced �the notion that there are two different �spheres� of action and of rightful claims; that of political society and that of the individual, and that in the interest of the latter the former must be as contracted as possible.� Such a notion would be replaced with �that form of social organization, extending to all the areas and ways of living, in which the powers of individuals shall not be merely released from mechanical external constraint but shall be fed, sustained and directed.�
�Where�does the state�s authority end? Dewey and other Progressives offered no answer. Robert Horwitz notes that Dewey�s political theory was weakened by his argument that �[t]he standard for guidance [in determining the nature and extent of the Administrative state] must be the empirical determination of which consequences of private activity are sufficiently �serious� or �irretrievable� to warrant political intervention.� In practice this means that the government gains �complete responsibility for determining the limits of [its own] political power.� This is dangerous, since �[t]he misunderstanding or misapplication of such standards by �publics� swayed by passion or misguided by demagogues might obliterate the sphere of the private. Tyranny of the majority presents itself as a distinct possibility.� But Dewey provides no solution to this problem beyond his �almost full dependence� on �an educated, public-spirited, and active citizenry.�� (quoting Robert Horwitz, John Dewey, in History of Political Philosophy 851 (L. Strauss & J. Cropsey eds., 3d ed. 1987)).
The �libertarian constitutionalism� view, however, has a workable answer to this problem of faction. Government exists to protect individual rights, and leave them �otherwise free.� It does not promise a solution to every problem, like poverty or ignorance; no political philosophy can solve all these problems. But libertarianism does promise the freedom necessary to allow people to solve those problems.
There are two sources of legitimacy in American constitutionalism: natural rights and compact. Natural rights holds that government exists to protect individual rights; to stop rapes and robberies and murders. In doing this, government acts as a universal guarantor of that which we already possess�the right not to be deprived of what we already have. As Madison said, �Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.� Protection of natural rights falls under the police power of the state.
Compact, on the other hand, is slightly more extensive: government can provide public goods by compact. These are things to which we have no natural right, but which we can rightly agree to provide by regulation�these are cases of �regulatory takings,� and in these cases, government must provide compensation under the Fifth Amendment because it is taking away something that rightly belongs to another person, for public use. To understand the difference between these two, consider a bank robber�when the police take his gun away, they don�t have to pay him just compensation, because this is a police power action. But when the government says that we have to preserve Lake Tahoe by forbidding construction, that is a public good�I have no natural right to stop someone else from building a house in order to keep the lake clean�and in that case, the government must pay just compensation. (Compact, of course, is a subset of, and hence limited by, natural rights; we cannot agree by compact to something that violates natural rights.)
I am indebted to Roger Pilon for this analysis. And for another brilliant and thorough explanation of these principles, consult Justice Brown�s dissent in San Remo Hotel L.P. v. City And County of San Francisco, 27 Cal.4th 643 (2002).
This is a question that can only be answered by political philosophy�not by economics or any other pursuit. It�s popular modernly to dismiss political philosophy as being hocus-pocus, and particularly to dismiss natural rights theory; commentators trip over themselves in their eagerness to ridicule the natural rights premises on which our Constitution is based. (See, e.g., Carlton F.W. Larson, The Declaration of Independence: A 225th Anniversary Re-Interpretation, 76 Wash. L. Rev. 701, 712 (2001) (�Invoking "natural rights" in a modern law school is about as persuasive as citing Cotton Mather's treatise on witchcraft.�)). This is done under the delusion that �scientific� political science is value-neutral, and thus immune from claims of absolute right and wrong such as lie at the heart of natural rights theory. In fact, this �value freedom� is no kind of freedom at all, but rather, a ludicrous self-contradiction.
Natural rights theory gives us (relatively!) easy answers to the limits of legitimate state interests. There are still rough patches and some genuine debates within the realm of natural rights theory: is there a natural rights theory of abortion, for instance. But even where natural rights theory does not give us specific answers, it provides us with a clear method for approaching the question. This is the form of analysis which Prof. Solum has called �libertarian constitutionalism.� It holds, in essence, that�in Locke�s words��the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law; and is not, as we are told, �a liberty for every man to do what he lists.� For who could be free, when every other man�s humour might domineer over him? But a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.�
Under this theory�which has the added advantage that the framers of our Constitution themselves believed it��our rulers can have authority over such natural rights only as we have submitted to them�. The legitimate powers of government extend to such acts only as are injurious to others.�
The modern welfare state, of course, was built gradually by widening the sphere of alleged �injury to others.� In Munn v. Illinois, for instance, that sphere was widened to allow government to regulate things that were �affected with a public interest.� Then it was widened again in the New Deal to include just about everything. The ��dog-dog, bite pig� theory of causation� which underlies modern commerce clause jurisprudence is a shadow of the concurrent spread of alleged �injury to others� which allowed government�s regulatory authority to expand to the point where it is now�where the very concept of freedom is alien to many Americans. But in the end, those principles were incompatible. Either government exists to run our lives for us, or it exists to protect our right to run our own lives.
Progressivism�the more intellectual facet of Populism, one of the leading prophets of which was Oliver Wendell Holmes�expanded this realm even further. As I write in my forthcoming article on the history of eminent domain, �John Dewey, for instance, denounced �the notion that there are two different �spheres� of action and of rightful claims; that of political society and that of the individual, and that in the interest of the latter the former must be as contracted as possible.� Such a notion would be replaced with �that form of social organization, extending to all the areas and ways of living, in which the powers of individuals shall not be merely released from mechanical external constraint but shall be fed, sustained and directed.�
�Where�does the state�s authority end? Dewey and other Progressives offered no answer. Robert Horwitz notes that Dewey�s political theory was weakened by his argument that �[t]he standard for guidance [in determining the nature and extent of the Administrative state] must be the empirical determination of which consequences of private activity are sufficiently �serious� or �irretrievable� to warrant political intervention.� In practice this means that the government gains �complete responsibility for determining the limits of [its own] political power.� This is dangerous, since �[t]he misunderstanding or misapplication of such standards by �publics� swayed by passion or misguided by demagogues might obliterate the sphere of the private. Tyranny of the majority presents itself as a distinct possibility.� But Dewey provides no solution to this problem beyond his �almost full dependence� on �an educated, public-spirited, and active citizenry.�� (quoting Robert Horwitz, John Dewey, in History of Political Philosophy 851 (L. Strauss & J. Cropsey eds., 3d ed. 1987)).
The �libertarian constitutionalism� view, however, has a workable answer to this problem of faction. Government exists to protect individual rights, and leave them �otherwise free.� It does not promise a solution to every problem, like poverty or ignorance; no political philosophy can solve all these problems. But libertarianism does promise the freedom necessary to allow people to solve those problems.
There are two sources of legitimacy in American constitutionalism: natural rights and compact. Natural rights holds that government exists to protect individual rights; to stop rapes and robberies and murders. In doing this, government acts as a universal guarantor of that which we already possess�the right not to be deprived of what we already have. As Madison said, �Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.� Protection of natural rights falls under the police power of the state.
Compact, on the other hand, is slightly more extensive: government can provide public goods by compact. These are things to which we have no natural right, but which we can rightly agree to provide by regulation�these are cases of �regulatory takings,� and in these cases, government must provide compensation under the Fifth Amendment because it is taking away something that rightly belongs to another person, for public use. To understand the difference between these two, consider a bank robber�when the police take his gun away, they don�t have to pay him just compensation, because this is a police power action. But when the government says that we have to preserve Lake Tahoe by forbidding construction, that is a public good�I have no natural right to stop someone else from building a house in order to keep the lake clean�and in that case, the government must pay just compensation. (Compact, of course, is a subset of, and hence limited by, natural rights; we cannot agree by compact to something that violates natural rights.)
I am indebted to Roger Pilon for this analysis. And for another brilliant and thorough explanation of these principles, consult Justice Brown�s dissent in San Remo Hotel L.P. v. City And County of San Francisco, 27 Cal.4th 643 (2002).
Legitimate State Interests: Prof. Solum has a great entry on what constitutes a legitimate state interest. As I�ve often mentioned before, I�ve long been puzzled by this phrase as well�and even moreso by what difference there could be between a legitimate and a compelling state interest.
The term �legitimate state interest� has remained undefined largely because of the Court�s reticence to face directly one of the great problems of our society: namely, that few Americans (and especially few in the legal profession) share the views of the creators of our republic as to what are and what are not legitimate interests for the state to pursue. It�s rather shocking to find that, two centuries after the founding of our nation, the Supreme Court can say that �Our cases have not elaborated on the standards for determining what constitutes a �legitimate state interest�� Nollan v. California Coastal Com., 483 U.S. 825, 834 (1987). I mean, isn�t it �the province and duty of the judicial department to say what the law is�? Marbury v. Madison, 1 Cranch (5 U.S.) 137, 177 (1803).
At an early period of American history, it was relatively clear what the role of government was. It existed to �secure these ends�: life, liberty, and the pursuit of happiness; it existed to protect �those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union...: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole....� &c. Corfield v. Coryell, 6 F.Cas. 546, 551-552 (C.C.D. Pa. 1823). It did not exist to take property from one person and give it to another, or to �adjust[ ] the benefits and burdens of economic life.� Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). Rather, it existed to �restrain men from injuring one another...leave them otherwise free to regulate their own pursuits of industry and improvement, and...not take from the mouth of labor the bread it has earned.�
But the Supreme Court has candidly acknowledged that �[t]he �natural rights� theory that underlay Corfield was discarded long ago.� Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281 (1985). The modern regulatory welfare state has (often explicitly) abandoned the limits of the Constitution and the principles on which it was written. Even conservatives have rejected the principles of the American founding, and have become absolutely alienated from the views of the founders they claim to admire. Instead, they�and the left, too�cling to the notion of judicial deference, and claim that the Court has no role in determining the proper limits of government action; they naturally focus on process instead of the substance.
The founding father of process-over-substance is, of course Justice Holmes, whom Prof. Solum interestingly finds advocating a practically unlimited degree of government power. This reminds me of a line from an essay Walter Berns: �Holmes...denied that the Court had such a role [as �republican schoolmaster�]. As he put it, �If my fellow citizens want to go to Hell, I will help them. It�s my job.� It is not clear where he picked up that idea, but it could not have been from anything written by the Framers. Their view was that the justices were to be �faithful guardians of the Constitution [even] where legislative invasions of it had been instigated by the major voice of the community.� Water Berns, The Supreme Court As Republican Schoolmaster: Constitutional Interpretation And The �Genius of The People,� in Bradford Wilson & Ken Masugi eds., The Supreme Court And American Constitutionalism 3, 11 (1998).
Consider the takings clause. In an essay in the Cato Supreme Court Review, Richard Epstein argues that the Court has refused to clarify its murky takings jurisprudence because doing so �requires an assessment of the legitimate purposes of government action�.� Richard A. Epstein, The Ebbs and Flows in Takings Law: Some Reflections on the Lake Tahoe Case, 1 Cato Sup. Ct. Rev. 5, 16 (2002). In other words, it is trying to avoid forming �a conception of the functions of government,� which is difficult to do for political reasons. Jesse Dukeminier & James E. Krier, Property 1106 (5th Ed. 2002). The Court itself acknowledges this fact in Tahoe-Sierra. Why does the Fifth Amendment�which says that �private property [shall not] be taken for public use without just compensation� allow the government to prohibit all construction in the Lake Tahoe area for decades on end without paying a dime in compensation? Why, because it would just be too expensive for the government to pay for all the things it takes!
�Petitioners' broad submission would apply to numerous normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like, as well as to orders temporarily prohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous practices that have long been considered permissible exercises of the police power. As Justice Holmes warned in Mahon, �[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.� A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking. Such an important change in the law should be the product of legislative rulemaking rather than adjudication.� Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 334-335 (2002).
Well, Q.E.D.! If it would cost too much, then we don�t have to pay! Wonder if that logic will work at the Wal-Mart.
Again, this all rests on the notion that the Court�s job is to faithfully chauffeur us into Hell. The Court is terrified that if it were to start faithfully following the Constitution, all sorts of insanity would break loose. They�re probably right, and that�s why we have the concept of stare decisis (well, one reason, anyway). But they could at least be honest about that fact, instead of pretending that they are applying any sort of genuine analysis to the question of what a legitimate state interest is.
One final note. Prof. Solum asks what �harm to self� is, and asks �what does this have to do with �legitimate state interests?� Actually, although I do not agree with the theory, I think the answer to this question is fairly straightforward, at least as far as Lockean theory is concerned. Under Locke�s argument, the individual does not own himself outright, but only has a life estate in himself, and thus has no right to engage in self-destructive behavior. Locke devised this argument to address the question of whether people may sell themselves into slavery, but the logic would also apply to suicide (which Locke specifically addresses) or drug use (which he does not). The state, according to this argument, may legitimately prohibit self-destructive activities because they exceed the legitimate rights of the individual. Again, I don�t buy the theory, but that�s how it goes.
The term �legitimate state interest� has remained undefined largely because of the Court�s reticence to face directly one of the great problems of our society: namely, that few Americans (and especially few in the legal profession) share the views of the creators of our republic as to what are and what are not legitimate interests for the state to pursue. It�s rather shocking to find that, two centuries after the founding of our nation, the Supreme Court can say that �Our cases have not elaborated on the standards for determining what constitutes a �legitimate state interest�� Nollan v. California Coastal Com., 483 U.S. 825, 834 (1987). I mean, isn�t it �the province and duty of the judicial department to say what the law is�? Marbury v. Madison, 1 Cranch (5 U.S.) 137, 177 (1803).
At an early period of American history, it was relatively clear what the role of government was. It existed to �secure these ends�: life, liberty, and the pursuit of happiness; it existed to protect �those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union...: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole....� &c. Corfield v. Coryell, 6 F.Cas. 546, 551-552 (C.C.D. Pa. 1823). It did not exist to take property from one person and give it to another, or to �adjust[ ] the benefits and burdens of economic life.� Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). Rather, it existed to �restrain men from injuring one another...leave them otherwise free to regulate their own pursuits of industry and improvement, and...not take from the mouth of labor the bread it has earned.�
But the Supreme Court has candidly acknowledged that �[t]he �natural rights� theory that underlay Corfield was discarded long ago.� Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281 (1985). The modern regulatory welfare state has (often explicitly) abandoned the limits of the Constitution and the principles on which it was written. Even conservatives have rejected the principles of the American founding, and have become absolutely alienated from the views of the founders they claim to admire. Instead, they�and the left, too�cling to the notion of judicial deference, and claim that the Court has no role in determining the proper limits of government action; they naturally focus on process instead of the substance.
The founding father of process-over-substance is, of course Justice Holmes, whom Prof. Solum interestingly finds advocating a practically unlimited degree of government power. This reminds me of a line from an essay Walter Berns: �Holmes...denied that the Court had such a role [as �republican schoolmaster�]. As he put it, �If my fellow citizens want to go to Hell, I will help them. It�s my job.� It is not clear where he picked up that idea, but it could not have been from anything written by the Framers. Their view was that the justices were to be �faithful guardians of the Constitution [even] where legislative invasions of it had been instigated by the major voice of the community.� Water Berns, The Supreme Court As Republican Schoolmaster: Constitutional Interpretation And The �Genius of The People,� in Bradford Wilson & Ken Masugi eds., The Supreme Court And American Constitutionalism 3, 11 (1998).
Consider the takings clause. In an essay in the Cato Supreme Court Review, Richard Epstein argues that the Court has refused to clarify its murky takings jurisprudence because doing so �requires an assessment of the legitimate purposes of government action�.� Richard A. Epstein, The Ebbs and Flows in Takings Law: Some Reflections on the Lake Tahoe Case, 1 Cato Sup. Ct. Rev. 5, 16 (2002). In other words, it is trying to avoid forming �a conception of the functions of government,� which is difficult to do for political reasons. Jesse Dukeminier & James E. Krier, Property 1106 (5th Ed. 2002). The Court itself acknowledges this fact in Tahoe-Sierra. Why does the Fifth Amendment�which says that �private property [shall not] be taken for public use without just compensation� allow the government to prohibit all construction in the Lake Tahoe area for decades on end without paying a dime in compensation? Why, because it would just be too expensive for the government to pay for all the things it takes!
�Petitioners' broad submission would apply to numerous normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like, as well as to orders temporarily prohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous practices that have long been considered permissible exercises of the police power. As Justice Holmes warned in Mahon, �[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.� A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking. Such an important change in the law should be the product of legislative rulemaking rather than adjudication.� Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 334-335 (2002).
Well, Q.E.D.! If it would cost too much, then we don�t have to pay! Wonder if that logic will work at the Wal-Mart.
Again, this all rests on the notion that the Court�s job is to faithfully chauffeur us into Hell. The Court is terrified that if it were to start faithfully following the Constitution, all sorts of insanity would break loose. They�re probably right, and that�s why we have the concept of stare decisis (well, one reason, anyway). But they could at least be honest about that fact, instead of pretending that they are applying any sort of genuine analysis to the question of what a legitimate state interest is.
One final note. Prof. Solum asks what �harm to self� is, and asks �what does this have to do with �legitimate state interests?� Actually, although I do not agree with the theory, I think the answer to this question is fairly straightforward, at least as far as Lockean theory is concerned. Under Locke�s argument, the individual does not own himself outright, but only has a life estate in himself, and thus has no right to engage in self-destructive behavior. Locke devised this argument to address the question of whether people may sell themselves into slavery, but the logic would also apply to suicide (which Locke specifically addresses) or drug use (which he does not). The state, according to this argument, may legitimately prohibit self-destructive activities because they exceed the legitimate rights of the individual. Again, I don�t buy the theory, but that�s how it goes.
Huh? The Declaration of Independence is a one page document. See for yourself.
Guinn v. Legislature: Here�s an interesting story which I haven�t seen mentioned in the national news, or the California papers. Nevada Governor Kenny Guinn is suing the legislature of Nevada�seeking a writ of mandamus to compel the legislature to pass a budget which the legislature refused to pass at its last session. At this link, you can read the relevant court papers (including the amicus brief of the Pacific Legal Foundation, written by my colleague Greg Broderick, with a little help from his friends).
Monday, July 07, 2003
Harry Potter: My mother was just saying the same thing this weekend. Maybe if I ever read the books I�ll form an opinion. (Don�t hold your breath.)
Civil War: An excellent post on the Volokh Conspiracy exposing (yet again) the lie that the South was fighting for �self-government.� As I was recently writing to one correspondent, Jefferson once said that one would have to be a prodigy to withstand the moral corruption that was slavery�at the heart of which was the unconscious assumption that whites were the only ones who really counted. We see the same assumption at the center of Jefferson Davis� claim that: �[o]ur present condition, achieved in a manner unprecedented in the history of nations, illustrates the American idea that governments rest upon the consent of the governed, and that it is the right of the people to alter or abolish governments whenever they become destructive of the ends for which they were established.� The consent of the governed?! Which of the slaves, precisely, consented to be governed? None--but they didn�t count to Davis. And his invocation of the �the ends for which they were established� embodies the same assumption, for what are those ends? Life, liberty, and the pursuit of happiness, all of which were denied to blacks. But of course Davis isn�t talking about blacks�they don�t count�he�s talking about whites. Davis probably did not even notice these assumptions�he could make such that statement, silently based on white supremacy and black inferiority, only because his government was based on the supposedly �great truth that the negro is not the equal of the white man.�
Certainly the men who fought and died for the Confederate cause believed they were fighting for the right to govern themselves as they sought fit, but what did they mean by �governing themselves�? Scratch it a bit and you find that they fought not to govern themselves, but to govern others; the right that they fought for was the right to enslave others without interference from Washington D.C. This is the soul of the problem�the assumption that blacks did not count allowed the white Confederates to speak as if they were standing up against intrusive government. But when we look at just what was being �intruded� upon, their so-called rebellion was nothing more or less than when the Crips shoot back at the cops who try to arrest them for murder. I suppose that is a kind of �governing themselves as they see fit.� In other words, the fundamental error is in adopting the wolf�s definition of freedom.
Certainly the men who fought and died for the Confederate cause believed they were fighting for the right to govern themselves as they sought fit, but what did they mean by �governing themselves�? Scratch it a bit and you find that they fought not to govern themselves, but to govern others; the right that they fought for was the right to enslave others without interference from Washington D.C. This is the soul of the problem�the assumption that blacks did not count allowed the white Confederates to speak as if they were standing up against intrusive government. But when we look at just what was being �intruded� upon, their so-called rebellion was nothing more or less than when the Crips shoot back at the cops who try to arrest them for murder. I suppose that is a kind of �governing themselves as they see fit.� In other words, the fundamental error is in adopting the wolf�s definition of freedom.
Pipes: Here�s an interesting example of the Screwing of The Average Man. Daniel Weintraub explains that the plumbers� unions are trying to get a law passed which would enable them to ban the use of plastic pipes. Why? Well, the unions say it�s for public safety reasons, but others point out that the unions make a bit more money using metal pipes, because they take longer to install. As Lord Coke said, �Protectors, like watermen, look one way and row another: claim public benefit, intend private.�
Sunday, July 06, 2003
Reading: Just finished Bernard Bailyn�s new book To Begin The World Anew. It�s a very short (150 pages) book of brief essays on the theme of the �provincialism� of the American founders. Not bad, but not spectacular. I plan to review it for a forthcoming issue of Liberty. Now it's on to the Peloponnesian War.
Kennewick Man: My brilliant brief in Bonnichsen v. United States, the �Kennewick Man case,� is online, courtesy of the Friends of America�s Past.
Fame!: Thanks to Southern Appeal for the blog roll link. As always, I have returned the favor.
