::Freespace::

Ninth Amendment cont’d: Prof. Solum has a really good Ninth Amendment post here. I really like Solum’s style—he writes like if Daniel Dennett was a law professor. That’s why he’s the Professor and I’m the…law…talkin’…guy. (Little Simpsons quote there).

One point I would suggest. Solum writes “We have a pretty good idea what the ‘enumeration in the Constitution, of certain rights’ refers to: it refers at the very least to the first eight amendments (or those of the eight that confer rights if some do not). It is more difficult, however, to say what the ‘other rights retained by the people’ might be. What is meant by rights? Are they individual rights or group rights or both? Are they natural rights or rights created by positive law? What does it mean to say they are retained? And what does it mean to say they are retained by the people?” I would propose that the Ninth Amendment’s reference to “the people” suggests at least one answer to this. As I’ve said several times, this “people” is the same “people” defined by the Constitution itself as “the people of the United States” who have “ordain[ed]” the Constitution “in order to form a more perfect union.” These terms persuade me that “the people” in the Ninth Amendment is the same “one people” who “dissolve[d] the political bands which...connected them” with England. And that, in turn, suggests that we should consider the Declaration and its natural rights philosophy in interpreting the Ninth Amendment—particularly since the Declaration itself refers to “other” rights, when it uses the phrase “among these” in its second paragraph. That, in turn, would signify a natural rights, individual liberty, classical liberal explanation of the Ninth Amendment.

Incidentally, one of the most interesting parts of this discussion is, what changes, if any, are wrought in our understanding of the Ninth Amendment by the ratification of the Fourteenth Amendment. This is an aspect of the discussion that really deserves more focus than it has received. Prof. Amar backs up my argument that we ought to be focusing more on the 1860s understanding of the Amendment than on the 1790s understanding. “Originally, the amendment largely sounded in federalism,” he writes,

Thus no original state constitution featured a similarly worded counterpart. But by 1867 fifteen states—the overwhelming majority of which had begun as federal territories—had borrowed from the federal template and adopted “baby Ninth Amendments.” Nine of these states adopted baby Tenth Amendments, and so, as with the establishment clause, we again see how words had begun to mutate in meaning. What had begun as a fedearlism clause intertwined with theTenth Amendment soon took on a substantive life of its own, as a flee-floating affirmation of unenumerated rights. Similarly, what began as a republican affirmation of collective rights of the people had begun to mutate—especially when seen through the prism of the Fourteenth Amendment—into a celebration of liberal civil rights of persons…. [W]ords inserted into the Constitution in 1791 must be read afresh after 1866.

Akhil Reed Amar, The Bill of Rights 281-83 (1998)

Very well put: From an article in the current issue of GQ:

In Joseph Conrad’s Heart of Darkness, there is a seemingly gratuitous little misogynistic aside in which the narrator, Marlow, before leaving for the ugly colonial world of the Belgian Congo, visits his aunt who lives in the “whited, sepculchure” city, as he calls Brussels. She has gotten him the job that will take him up the Congo River, and she goes on enthusiastically about what is, essentially, the rape of Central Africa for European profit. The aunt believes the hype that this colonization is actually a great and civilizing enterprise. Marlow, who knows better, comments dryly, “It’s queer how out of touch with truth women are. They live in a world of their own…. It is too beautiful altogether, and if they were to set it up it would go to pieces before the first sunset.”

At the end of the book, when a very damaged Marlow returns to Europe after having looked into the nightmare world of the ivory trader Kurtz, this earlier scene makes better sense. Kurtz had gone off to Africa full of those same false lofty ideals, but instead of becoming a noble agent of civilization he became a brutal tyrant, and now he is dead. Marlow visits Kurtz’s “Intended,” who remembers Kurtz in the rosy and heroic terms Kurtz and her society taught her. She remembers his magnificent ideas for the civilization of Africa, which he wrote out at length (only later to scrawl across the pages, never seen by her, the rather comprehensive phrase, “Exterminate all the brutes!”). She asks Marlow about Kurtz’s last words. Marlow knows how enormous a gulf exists between what she is capable of taking in and what those words were: “The horror! The horror!” and he knows too that he can never describe for her the kinds of horror those words refer to. So he tells her Kurtz’s last words were her name. “It seemed to me,” he says after the lie, “That the house would collapse before I could escape, that the heavens would fall upon my head. But nothing happened. The heavens do not fall for such a trifle.”

When men cease to be boys, when we pass for the first time beyond the moral circle of our mothers’ kingdoms into new worlds of our own making, into what we soon think of as the “real” world, we commence a psychological journey similar to Marlow’s: We look into the darkness of our own developing willfulness, our sexuality, our ambition and our ego. In order to succeed as men, in the terms our particular civilization has established, we have to build these things up and constantly strengthen them. This task feels (and always will feel) in some essential way like a criminal activity, one that we should undertake largely in secret, kept from our families for fear that we will be identified as alien and repulsive when once we’d been beloved, and, to a lesser degree, from our friends for fear of being too sharply cut down to size in what turns out to be a highly competitive mission.

Women wonder, often out loud, about the male ego, about its outlandish size and its callous assumptions. Well, here’s an announcement that I’ll deny in the morning: It’s even worse than you think. And here’s something else, which I’ll deny even before the morning: When you discover a man has lied to you about something, what he then “admits” to you as the truth will, at least in a few crucial respects, also be a lie. The full truth, the whole thing, almost never feels like a viable option.

Vince Passaro, Why Men Lie, And Lie, And Lie…, GQ, March 2004 at 273.

Listen to Jupiter: Courtesy of NASA. “...natural radio lasers near the planet’s magnetic poles”—now that is cool poetry.

Nature and nurture: How about that? In the wake of my post about libertarians paying too much attention to nature, it turns out libertarians don’t pay enough attention to nature.

Reasons for freedom: A good post on the early women’s movement at Diotima.

Libertarian Bookworm: A short and enjoyable classic of libertarianism is Frédéric Bastiat’s The Law, which you can read on line here. Bastiat was a nineteenth century French economist who wrote several works that explain basic economic concepts to the layman, including his great parody, the “Petition of the Candletick Makers,” in which the candlestick makers ask the government to ban the sun, in order to improve the economy—demonstrating the stupidity of tariffs—or his essay “That Which Is Seen And That Which Is Unseen,” from which the famous “Broken Window Fallacy” draws its name. That fallacy is (really the same fallacy that underlies tariffs): to think that destroying things can make people richer. You’ve probably seen pictures from the Great Depression of people pouring out milk onto the ground, or allowing trainloads of peaches to rot, in order to raise prices for farmers. These people fell victim to the “Broken Window Fallacy.” In fact, while doing this can raise prices for farmers, it does so only by making milk or peaches more scarce, which is bad for the whole economy because it raises prices for everyone. This fact is really obvious, because if destroying milk and peaches—or if raising the prices of imported steel—was really a good idea, then why not just destroy all of them? Why not periodically bomb large cities so that we can rebuild them and thereby “create jobs”? The fact is, you cannot get rich by breaking things.

The Law is a more general work. It was actually written as a pamphlet opposing universal suffrage in France in 1850. Bastiat was not opposed to people voting on the grounds that they were inferior, or stupid, or anything like that—instead, he pointed out that if a state is properly run, voting is really not that big a deal, because votes do nothing more than to choose employees of the state. Why, then, are people so eager to vote? Because they don’t want to use the state just to protect freedom—they want to use the state to steal property from other people and give it to themselves. Only when government is capable of giving women, or any other group, money taken from others, does the vote become really valuable. Many years before The Calculus of Consent, Bastiat was explaining the Public Choice problem.

Bastiat begins with plain-vanilla Lockean natural rights theory:

Each of us has a natural right—from God—to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties…? And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force—for the same reason—cannot lawfully be used to destroy the person, liberty, or property of individuals or groups…. The law is the organization of the natural right of lawful defense…to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.

Unfortunately, the state can also be abused, because “[w]hen they can, [people] wish to live and prosper at the expense of others.” They do this in several ways, of course. One egregious present-day example is the Byrd Amendment, which is a so-called “anti-dumping law.” No, it’s not an environmental regulation, it’s a tariff, designed to stop foreigners from “dumping” cheap goods on the American market. If a foreign company “dumps” cheap goods on the market, American competitors can sue that company for the difference between the market price for the good and the foreign company’s price, and then the American competitors who filed suit get to share in the damages that are assessed against the foreign country! The Byrd Amendment is in clear violation of free trade treaties, but the more serious problem is that the law is really just a redistribution of wealth—it takes property from foreign companies (and, ultimately, the consumer) and gives it to American companies, on the mere basis of their political power. Many legal barriers to trade—occupational licensing, for instance—are designed to do the same thing: people want to get rich by making it illegal to shop somewhere else.

Bastiat calls this “legalized plunder,” and explains that getting a share in that plunder is the real motivation behind the people who insist on the importance of voting: “Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few—whether farmers, manufacturers, ship owners, artists, or comedians. Under these circumstances, then certainly every class will aspire to grasp the law, and logically so. The excluded classes will furiously demand their right to vote—and will overthrow society rather than not to obtain it.” It’s not that people should be excluded from voting—but that they should be excluded from using the state to rob people. When the state is used to redistribute benefits from one group to another, it becomes a constant conflict between interest groups, each scrambling for a political weapon against the other, when they ought to be dedicating themselves to building, creating, inventing, and enjoying their lives. “Which countries contain the most peaceful, the most moral, and the happiest people?” asks Bastiat.

Those people are found in the countries where the law least interferes with private affairs; where government is least felt; where the individual has the greatest scope, and free opinion the greatest influence; where administrative powers are fewest and simplest; where taxes are lightest and most nearly equal, and popular discontent the least excited and the least justifiable; where individuals and groups most actively assume their responsibilities, and, consequently, where the morals of admittedly imperfect human beings are constantly improving; where trade, assemblies, and associations are the least restricted; where labor, capital, and populations suffer the fewest forced displacements; where mankind most nearly follows its own natural inclinations; where the inventions of men are most nearly in harmony with the laws of God; in short, the happiest, most moral, and most peaceful people are those who most nearly follow this principle: Although mankind is not perfect, still, all hope rests upon the free and voluntary actions of persons within the limits of right; law or force is to be used for nothing except the administration of universal justice.

The Law is a day’s easy reading, and an excellent attack on the abuse of political power. If you’d prefer a hardcopy, you can get it here (with an introduction by Walter Williams!) And for more on Bastiat himself, check out Frédéric Bastiat: A Man Alone, by George Roche.

Art: Check out the beautiful Veiled Dancer on display at Misadventures of Sarah Hempel!

Rights: Ed Brayton’s response to my note about legitimate government interests makes a good point; I said that “legitimate government interests” are defined by the Declaration as the protection of life, liberty, and the pursuit of happiness. He says this ought not to be read as an exhaustive list, and he’s correct—the Declaration itself says that life, liberty, and the pursuit of happiness are “among” the rights which government ought to protect. Mr. Brayton adds, though, that “sometimes [legitimate government interests] are in conflict and we must find some means of balancing them.” No, I don’t think so. If government exists to protect rights, then such protection would only cause conflicts if those rights were themselves inconsistent; yet rights must be compossible.

This is actually a pretty controversial statement, come to think of it, but it’s midnight, and I don’t want to defend it now. Check Nozick’s example of the guy in the well with the ray gun and I’ll get back to you.

I don’t think I actually disagree with Mr. Brayton; I just resist the more modern terminology he uses. For instance, he says “Even free speech, as fundamental a right as we have, has narrowly drawn exceptions to it.” Well, yes, it exceptions have been drawn, but those exceptions are often very much drawn in error—such as the campaign finance cases, which are a gigantic “exception” to free speech. The “yelling fire in a theater” exception is not actually an exception at all, since one does not have any right to yell fire in a crowded theater; it’s not an exception any more than saying that John’s right to life is an “exception” to another Richard’s freedom of action on the grounds that it prevents Richard from killing John. Such terminology I think is a bit confusing.

All ways here are my ways!: One common, sophisticated argument against libertarianism takes the view that there is simply no such thing as freedom. Libertarianism, you see, argues that it is wrong to regulate in certain areas of life, because these things are morally private; there ought not to be an intrusion by some third party into the situation that two parties have agreed to (whether that situation is a business transaction, or private sexual relations, or, well, both). We often portray the state as one of the mechanisms people use to change the way they were living before the state existed—to emerge from the “state of nature.”

The argument that I’m talking about rejects the idea that there is such a thing as a state of nature. It holds instead that it is impossible to speak of a natural state of things, uncontaminated by political institutions, but rather that “[i]n the social production of their life, men enter into definite relations that are indispensable and independent of their will.... The sum total of these relations of production constitutes the economic structure of society, the real foundation which raises a legal and political superstructure and to which correspond definite forms of social consciousness.... It is not the consciousness of men that determines their being, but, on the contrary, their social being that determines their consciousness.” Karl Marx, Preface to A Contribution to The Critique of Political Economy (1859) reprinted in The Marx-Engels Reader 3, 4 (R. Tucker 2d ed. 1978).

In other words, transactions between actors in society are so influenced by mores or other social influences that the law itself comes to reflect those tacit assumptions. Later transactions are then made according to such precedents, and these transactions then become precedents for further transactions...ad infinitum. Consequently, a transaction today cannot be said to reflect an objective, non-political meeting of the minds between the parties; instead, transactions are permeated by social influences and institutions, which “determine the consciousness” of the parties and thus the content of their transactions.

Laurence Tribe illustrates this point with an elegant analogy drawn from modern physics. Just as gravity is said to “curve” space, so law is said to permeate human life; one cannot speak of society outside of the influence of government. Laurence Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 Harv. L. Rev. 1 (1989). “Newton’s conception of space as empty, unstructured background parallels the legal paradigm in which state power, including judicial power, stands apart from the neutral, ‘natural’ order of things,” writes Tribe. Id. at 7. But we must learn to reject the idea that there can be such a “neutral, ‘natural’ order of things.” Instead,

just as space cannot extricate itself from the unfolding story of physical reality, so also the law cannot extract itself from social structures; it cannot “step back,” establish an “Archimedean” reference point of detached neutrality, and selectively reach in, as though from the outside, to make fine-tuned adjustments to highly particularized conflicts. Each legal decision restructures the law itself, as well as the social setting in which law operates, because, like all human activity, the law is inevitably embroiled in the dialectical process whereby society is constantly recreating itself.

Id. at 7-8.

Thus Tribe concludes that there is no such thing as society outside of law, and thus no such thing as an unregulated state of affairs. “The legal ‘freedom’ of contract and property came [in the 1930s] to be seen as an illusion, subject as it was to impersonal economic forces.... [C]ommon law doctrines and decisions [are] expressions of positive governmental intervention to achieve identifiable, thought not always laudable, human purposes.... ” Laurence Tribe, Constitutional Law 578 (2d ed. 1988). Were the government to pursue even the most laissez-faire policy with regard to a particular issue, that in itself is a political decision creating a political-economic framework (X) which is not in principle different from framework Y, which might be heavy regulation. Sure, in framework X, John might have more of a particular good, and Betty have less of it, while in framework Y, the opposite might be the case. But the point is not the particular outcomes of regulated versus an unregulated states of affairs. The point is that for Tribe, “[t]here was no ‘natural’ economic order to upset or restore” through intervention. Id. at 579. All situations are equally the results of government policy and therefore indistinguishable as a matter of political theory; the only difference is a practical one.

Another theorist who has devoted time to this point is Cass Sunstein, who uses it to develop a startling argument that there should be a New Deal for speech rights. See, e.g., Cass R. Sunstein, A New Deal for Speech, 17 Hastings Comm. & Ent. L. J. 137 (1994). The question, he says, is not whether the government ought to regulate speech, writes Sunstein, because the government already does, by protecing private property rights, for instance. Since “governmental rules lie behind the exercise of rights of property, contract, and tort,” a regime of private property is itself a form of regulation. Id. at 140.

[A] major problem with the pre-New Deal framework was that it treated the existing distribution of resources and opportunities as prepolitical and presocial...when in fact it was not.... [The] private or voluntary private sphere...was actually itself a creation of law and hardly purely voluntary. When the law of trespass enabled an employer to exclude an employee from ‘his’ property unless the employee met certain conditions, the law was crucially involved. Without the law of trespass, and accompanying legal rules of contract and tort, the relationship between employers and employees would not be what it now is; indeed, it would be extremely difficult to figure out what that relationship might be, if it would exist in recognizable form at all.

Cass R. Sunstein, Democracy And The Problem of Free Speech 30 (1993).

Such things are, in Sunstein’s view, just another form of government regulation over speech rights, because the poor have less “access” to publishing or broadcasting privileges. Protecting private property and refusing to force people to subsidize the publication of viewpoints they find revolting are government policies that create speech rights. So the question should not be whether the government should regulate, but how the government ought to regulate: those advocating wealth redistribution are not “plea[ding] for government intervention where none existed before. Instead, it is a claim for a new regulatory system.” New Deal, supra at 140. This explains the title of this post: just as the Red Queen tells Alice that she can’t have lost her way, because all ways here are the Queen’s ways, so Tribe and Sunstein argue that there is no such thing as an unregulated state, because all ways are the government’s ways.

Blogger Grant of Proper Winston adheres to this view. For him, there is no such thing as privacy: “the ‘private’ sphere isn’t a thing that naturally exists. It depends upon human attitudes and ideologies.” And therefore “we can no longer talk of sexual harassment laws as eating away at the ‘private’ sphere of liberty.”

There are at least eight problems with this Red Queen view. In no order:

1) Like the fashionable postmodernism, the Red Queen’s view holds that it is impossible to describe a state of affairs in terms which are not themselves tainted by that ideology. But of course this would have to apply to the principle itself; if the social consciousness is corrupted by power lust, so would the Red Queen’s own notions. So it is contradictory for defenders of the assumption to argue for it, because they must themselves be products of this very social conditioning; it commits what Harry Jaffa calls the “same fatal dualism that has characterized the descendants of that first of modern philosophers, the Cretan who said that all Cretans are liars!” Harry V. Jaffa, A New Birth of Freedom 97 (2001).

2) Because, in this view, justice is determined on the basis of collective choice rather than anything intrinsic, justice becomes not a thing to be found, but a thing created by forcing society to conform to some other standard determined by...well, the particular philosopher in question, it seems. As Anthony de Jasay explains, this no-fault concept makes the notion of justice incoherent, since it must be decided upon in the absence of justice itself, and ends up inflicting an endless series of further injustices.

3) In a related vein, the Red Queen view leaves those who adopt it unable to recognize, or to address, real injustice once that injustice is accepted a political state. By defining rights not by reference to an objective, non-political nature, but rather as propositions backed up by political force, the Red Queen theory is unable to address the possibility that political states can act unjustly at all. This one troubles me the most. To say that it is meaningless to speak of a “private” sphere is to quite blatantly call for totalitarianism and to abandon even the idea of justice. Why would we call for sexual harassment laws to begin with? Aren’t the feelings of a woman who is sexually harassed just meaningless, because they’re just pervaded with human attitudes and ideologies. More extremely, one could say the same about rape, couldn’t one? If a man rapes a woman in a forest and nobody is there to hear it, is it unjust? Was slavery unjust even though those who observed and practiced it were taught that it was a good and right thing? I say yes.

4) Because the Red Queen theory leads to the conclusion that all rights are permissions granted by political authority, it shifts the burden of proof onto the actor who wishes to be free, rather than where it belongs, which is on the government, to prove that it ought to regulate. This shift in the burden of proof places an impossible burden on the actor, and paralyzes the society from the making any choices. It is not possible to prove that one ought not to be restrained from acting, just as it is not possible to prove any other negative.

5) As mentioned before, it places no bounds on the political, and thus tends naturally toward the absolute state. Again, this may not be considered so awful by those who advocate an absolute state, although I know of few who would make that argument consistently and directly. But after a century like the twentieth, it is incumbent upon responsible political thinkers to scrutinize absolutism with a very skeptical eye.

6) The assumption is undemocratic, in that it ignores the fact that “natural, neutral” outcomes are the result of the aggregate individual outcomes and thus represent, on a broad scale, the choices of society. To put it another way, it ignores the possibility that justice is a discovery, rather than a creation, and that the proper mechanism for determining just distributions of wealth might be a system so decentralized as to at least greatly resemble a largely unregulated market of private transactions. Similarly, the assumption ends up attacking natural inequalities that are simply a fact of life. If there are no natural outcomes, that means there must be no natural causes for those outcomes, which leads to absurdity; like Xerxes flogging the Hellespont, the defenders of this view end up advocating redistributions of resources to address unequal outcomes that are actually the result of a nature they refuse to acknowledge.

7) And most importantly, the assumptions which do underlie Locke’s State of Nature theory describe actual and observable features of human nature, such as reason, limited knowledge, equality, and the natural tendency of all human beings to institutions such as private property and a desire for privacy. If it were true that all ways are the Queen’s ways, we ought to find some record of a society in which privacy did not exist. We find none. In fact, the repeated experiments at creating such a thing have been marked by repeated failure. There has never been a society which did not recognize that some things are private. Such a constant theme suggests that privacy is, indeed, a natural, and not a collective-choice phenomenon.

8) (Though this is not a logical flaw:) It is inconsistent with America’s founding principles. This is perhaps no great problem for those who overtly reject America’s founding principles, but many, if not most, Constitutional scholars attempt to defend their position on the grounds that their interpretation of the Constitution is consistent, at least to some degree, with the views of those who wrote it. For example, both Robert Bork and Cass Sunstein attempt to label their views “Madisonian,” despite the fact that their (remarkably similar) views are precisely the opposite of the views of James Madison. In fact, the Red Queen view is much more reminiscent of John Locke's characterization of Robert Filmer:

His system lies in a little compass, ’tis no more but this,
That all Government is absolute Monarchy.
And the Ground he builds on, is this,
That no Man is Born free.

John Locke, First Treatise of Civil Government, reprinted in Two Treatises of Civil Government 175-176 (P. Laslett rev. ed. 1963). The American regime, however, was based on the exact opposite view: that since government is something imposed on otherwise free people, that imposition must itself be consistent with pre-existing moral rules.

Tom Palmer has provided a briefer refutation of a very similar argument here. See also David E. Bernstein, Lochner’s Legacy’s Legacy, 82 Tex. L. Rev. 1 (2003).

Verboten: Classical Values has a list of banned blogs. I’m proud to say that Freespace is banned in the Rialto School District, where I was “educated.”

Great exports: Did you know that Tom Palmer is in Iraq? He’s got a few blog posts about it.

Legitimacy: Thanks to Dispatches from The Culture Wars for the link. While Mr. Brayton agrees with my characterization of the conservative attitude toward judicial review, he seems to differ with me on a point. “If,” he says, “Congress could show a legitimate governmental interest that justified banning sneakers, such a law would be constitutional.” This would be true only if we define what a legitimate government interest is. Unfortunately, even the Court has acknowledged that—I believe out of cowardice—it has refused to answer that question. Nollan v. California Coastal Com., 483 U.S. 825, 834 (1987) (“Our cases have not elaborated on the standards for determining what constitutes a ‘legitimate state interest.’”). When the Court tried to avoid it, it simply assumes the answer: “whatever the people want.” But the Ninth Amendment indicates to us that that cannot be the correct answer, because there are other rights that the people retain.

What is a legitimate government interest? The Declaration of Independence tells us: “to secure these rights,” namely, “life, liberty, and the pursuit of happiness.” These things are not reasonably related to banning sneakers, and it is therefore unreasonable for the government to do that at all, even aside from the fact that Congress has no such enumerated power. The Ninth Amendment warns us against an expansive reading of federal power, because such an expansive reading will lead us into the losing game of asking the question in the terms of undefined “government interests.”

If rights are properly understood—and I know that’s an immense “if”—then the question is, indeed, “do some people have a right to prohibit people from wearing sneakers?” In some cases that answer might be yes—say, if the case involves someone’s private property; he has a right to forbid you from going into his house with sneakers on. This is the proper analysis. As Prof. Barnett argued in his Lawrence amicus brief,

Because the police power of a state is its power to protect the liberties of the people, the proper scope of that power is a function of and limited by those same liberties.... [T]he prevention of harm is still the prime justification for the use of the police power. “To justify the State in...interposing its authority in behalf of the public, it must appear, first, that the interests of the public...require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals.” Lawton v. Steele, 152 U.S. 133, 137 (1894).... while the police power may be broad, it extends only so far as an individual’s actions have a deleterious, concrete impact on themselves or others. It does not extend to purely private, non-harmful activities that may be matters where there are moral disputes or different views, but no concern of the body politic as a whole.... If the law does not address an activity that causes harm or impacts the public, it is beyond the power of the government to regulate, regardless of whether the specific liberty interest is deemed fundamental.

The problem with 17200: I’ve mentioned many times how bad California’s “Unfair Competition Law,” (Bus. & Prof. Code § 17200) is. Here are two dandy examples. Both, fortunately, were dismissed by the Courts of Appeal, but of course the lawyers still have to be paid, so dismissal doesn’t mean that these cases aren’t a big problem:

Citizen Justice, LLC v. Liberty Productions, Inc., 2004 WL 113575 (Cal. App. 2 Dist. 2004):

A corporation called Consumer Cause, Inc. brought suit against Liberty on March 22, 2002, as a limited civil case. Consumer Cause claimed to be acting on behalf of all “California men who were denied complimentary chocolates and roses at auto shows produced and organized by [Liberty] during the four years preceding the filing of [the] action." Consumer Cause described itself as “a corporation qualified to do business in California with its corporate headquarters in Los Angeles, California.” The complaint stated that the activities alleged constituted an unlawful business practice in violation of Business and Professions Code section 17200 (“the Unfair Competition Law”) and the Unruh Civil Rights Act.... Our review of the law in this area reveals no authority for the proposition that a business establishment engages in an illegal or discriminatory act if it gives an advertised discount to all who request it. Nor do we find any support for the proposition that a business violates the Unruh Act when it offers a modest token to women, but requires that men who wish to obtain the same gift to affirmatively request it.

Who is “Consumer Cause, Inc.”? It’s a pestiferous little litigator that goes around suing people to force them to settle out of court for nuisance value. As the Metropolitan News-Enterprise has put it, “Consumer Cause, represented by Los Angeles attorney Morse Mehrban...has been described by one law firm whose clients were among those targeted as a ‘Proposition 65 bounty-hunter,’ and its practice of sending out massive numbers of notices of intent to sue, then settling for donations plus attorney fees, was described by a Court of Appeal justice as ‘a form of judicial extortion.’”

Clancy v. Hot Network, 2004 WL 171333 (Cal. App. 2 Dist. 2004):

Plaintiff is an attorney, licensed to practice in the State of California.... He has more than 38 years of experience, specializing in obscenity litigation. Plaintiff receives cable television service from defendant American Telephone and Telegraph, Inc. (AT & T). Broadcast on cable channels 96 (analog), 457 and 459 (digital) are “In Demand, Pay Per View, Adults Only” programs. These included 101 Cheerleaders & 1 Jock, Hell on Heels, and More Than a Handful 9, broadcast between January 27 and April 30, 2001. AT & T broadcasts adult films and previews 24 hours a day. It charges $11.95 for receipt of a three-hour segment of the broadcasts, including two 75-minute films and two 15-minute previews. On January 27, 2001, plaintiff paid $11.95 to AT & T for “In Demand, Pay Per View, Adults Only” programs. AT & T broadcast into his home five adult motion pictures and additional previews. The previews advertised motion pictures produced by defendants Vivid Entertainment Group, The Hot Zone and The Hot Network. The previews advertised the motion pictures as containing “real, live, all-American sex[*]—not simulated by actors.”

Plaintiff began recording AT & T’s “In Demand, Pay Per View, Adults Only” programs on a daily basis. Over 93 days—through May 1, 2001—he recorded 460 adult motion pictures broadcast on analog channel 96, including 121 different titles. From these recordings, he constructed time and motion studies regarding the depictions of sexual conduct in the motion pictures. From May 2, 2001 through August 5, 2001, plaintiff purchased and recorded adult motion pictures broadcast by AT & T on digital channel 457.... [P]laintiff claimed he had standing to file a civil lawsuit to terminate AT & T’s unlawful business practices under Business and Professions Code section 17200, to revoke their cable franchise, and to terminate a public and private nuisance. He also claimed entitlement to restitution of the money he spent to receive and record AT & T’s broadcasts, plus punitive damages and attorney’s fees. He claimed an additional right to file a class action lawsuit on behalf of other paying subscribers to AT & T broadcasts.

Meanwhile, opposition to reform heats up.

Update: In my post-haste (ha!) I omitted to mention that in Clancy, the plaintiff alleged that charging money for pornographic television was an unfair business practice because porn is bad:

Specifically, plaintiff sought a declaration that AT & T could not assert as a defense that its broadcasts were made to consenting adults; that AT & T’s broadcasts were unlawful per se hardcore pornography and constituted moral public nuisances and contraband. He sought the issuance of an order to show cause why AT & T should not be required to cease broadcasting hardcore pornography to consenting adult viewers. He sought a partial summary judgment on the pleadings as the films depicted in the [videotapes] incorporated in the complaint. He sought an accounting and forfeiture of AT & T’s unlawful profits derived from the broadcast of hardcore pornography between October 20, 2000 and October 2, 2002. Finally, he sought attorney’s fees and costs…[and] claimed he had standing to file a civil lawsuit to terminate AT & T’s unlawful business practices under Business and Professions Code section 17200, to revoke their cable franchise, and to terminate a public and private nuisance. He also claimed entitlement to restitution of the money he spent to receive and record AT & T’s broadcasts, plus punitive damages and attorney’s fees. He claimed an additional right to file a class action lawsuit on behalf of other paying subscribers to AT & T broadcasts.

Clancy v. Hot Network, 2004 WL 171333, at **3-4 (Cal.App. 2 Dist. 2004).

*–don’t want any of that there forrin’ fake sex.

More on Dolley Madison: I linked yesterday to an interesting site about Dolley Madison. A Mr. Richard Feder, of Fort Lee, New Jersey, writes, “I will be attending an investiture at the Dolley Madison House later today, which is maintained as an historical landmark and more or less in the style of her day. It’s adjacent to the Federal Courts building, which houses both the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims. The Dolley house is connected through the second floor with the courts building and is used as meeting space for the Federal Circuit, for receptions, and various public events.

“There’s a bad photo of the outside from some guy’s vacation…. It’s the best I saw on the Web, however. And this sits in the courtyard between the Dolley house and the court’s lobby. It’s a cheap imitation [of St. Gaudens’ Mrs. Adams Memorial], but still quite beautiful. Too bad there’s not a Web site covering the house in greater detail.”

I actually have a better photo of the Madison house right here, but since I don’t have a scanner, we’re stuck with that one.

More on Madison and Christianity: Well, I gave up on Sheldon last night, after encountering the following passage. You’ll see what I mean; Sheldon’s monomania would have been irritating enough had it not been based on a thesis which he fails utterly to prove:

His belief in the reality of human sin and depravity caused Madison to prepare for the worst. Envy and selfishness could easily turn to civil war, anarchy, and foreign intervention. “The consequences of such a situation,” he wrote, “would probably be that alliances would be sought first by the weaker and then by the stronger party and this country be made subservient to the wars and politics of Europe.” “The wages of sin is death,” said St. Paul (Rom. 6:23); Madison saw that warning as applicable to nations as well as individuals.

What? Where is the evidence that Madison quoted Paul on this occasion, or that he had this passage in mind when writing it, or even when thinking about the subject in general? I don’t doubt Madison was familiar with this line from scripture—as am I—but Sheldon provides no proof that Madison was reflecting on Pauline notions of “human sin and depravity” when he served in the Continental Congress, any more than I ponder “human sin and depravity” when doing my legal work. Perhaps, if Dr. Witherspoon had asked him, “Jemmy, do you think these problems with the Articles of Confederation are instances of human sin and depravity?” he would have said “Well, yes, I suppose so,” but there’s no reason to think that this was foremost, or even prominent in Madison’s mind. But soft, Sheldon continues:

…Madison drafted a new impost law…. He reminded the states that the revolution for which these debts were incurred had been fought for “the rights of human nature” and that it was only “by the blessings of the author of these rights” that “they have prevailed.” Gratitude to God and fidelity to His values of “justice, good faith, honor, gratitude, and all the other qualities which enable the character of a nation” are America’s “cardinal and essential virtues.” Abandonment of moral and financial obligations were an offense against God’s providential protection as well as poor national policy.

But here’s what Madison actually wrote—and it was written as an address from Congress, not from Madison personally:

If the voice of humanity plead more loudly in favour of some than of others, the voice of policy, no less than of justice, pleads in favour of all. A wise nation will never permit those who relieve the wants of their country, or who rely most on its faith, its firmness and its resources, when either of them is distrusted, to suffer by the event. Let it be remembered finally, that it has ever been the pride and boast of America, that the rights for which she contended, were the rights of human nature. By the blessing of the author of these rights, on the means exerted for their defence, they have prevailed against all opposition, and form the basis of thirteen independent states. No instance has heretofore occurred, nor can any instance be expected hereafter to occur, in which the unadulterated forms of Republican government can pretend to so fair an opportunity of justifying themselves by their fruits. In this view the citizens of the United States are responsible for the greatest trust ever confided to a political society. If justice, good faith, honor, gratitude and all the other qualities which ennoble the character of a nation and fulfill the ends of government be the fruits of our establishments, the cause of liberty will acquire a dignity and lustre, which it has never yet enjoyed, and an example will be set, which cannot but have the most favourable influence on the rights of Mankind. If in the other side, our governments should be unfortunately blotted with the reverse of these cardinal and essential virtues, the great cause which we have engaged to vindicate, will be dishonored and betrayed; the last and fairest experiment in favor of the rights of human nature will be turned against them; and their patrons and friends exposed to be insulted and silenced by the votaries of tyranny and usurpation.

Now, is it really fair to single out the reference to “the author” (not even capitalized!) rather than to such secular references as the “voice of humanity” and the “voice of policy”? Where, in this passage, is the emphasis on any rebellion against God, or fidelity to His values? Certainly the framers considered honesty to be fidelity to Christian values; but this passage is almost wholly secular, and comes at the end of a six page letter that is wholly secular.

One more? How about this:

To Jefferson he confided: “This picture of our affairs is not a flattering one; but we have been witnesses of so many cases in which evils and errors have been the parents of their own remedy, that we cannot but view it with the consolations of hope.” He seemed to come close to quoting that favorite evangelical verse of the Apostle Paul, “all things work together for good to them that love God, to them who are the called according to his purpose” (Rom. 8:28).

Why yes, Prof. Sheldon! They’re practically the same words! Came close to quoting, indeed. This book will soothe those who wish to believe that the American founding was fundamentally Christian. But it will do nothing to convince those of us who would like some evidence on that head. Far, far superior studies of Madison’s political philosophy are Lance Banning’s The Sacred Fire of Liberty, Gary Rosen’s American Compact, and William Lee Miller’s The Business of May Next.

Reader Jonathan Rowe responds to my earlier comment about Sheldon:

Although [Walter] Berns is generally a social conservative and anti-libertarian, he actually has quite a strong understanding of this nation’s secular foundation. Chapter 2—“God Before Country”—in Making Patriots provided me with some pretty valuable insights regarding America’s secular founding.

That book also notes that John Witherspoon, contrary to Sheldon’s claims, was as much of a Lockean as he was a Calvinist (He was a Presbyterian—which Calvin founded. Maybe that's why Sheldon claims this). From Berns: “Like Jefferson and Madison, [Witherspoon] had obviously read Locke with care and was persuaded by him of the importance of liberty of conscience—which put him at odds with the founder of Presbyterianism, John Calvin. (For Calvin, liberty of conscience meant just that, and no more than that. If someone gave voice to his conscience, thus being heard or read by others, he might rightly be punished. So it was that, as the effective governor of his city of Geneva, Calvin had one of his anti-Trinitarian critics put to death.) Making Patriots, p. 42.

Witherspoon’s importance to our founding seems to be that he acted as sort of a “mediator” between the Enlightenment philosophers and Christian theology, and led Christians to believe that Enlightenment philosophy was perhaps more compatible with their orthodox Christianity than perhaps it really was. The philosophers who articulated “Natural Right” were either non-Christians or non-Trinitarian heretic Christians. “Nature’s God” who, according to the philosophers, grants us inalienable rights certainly wasn't the God of orthodox Christianity. And the notion that Jehovah or Jesus grants us inalienable rights is “wrong as a matter of doctrine—where does the Bible speak of unalienable natural rights, or the liberty to worship or not to worship as one pleases?” Id.

However, it made very good political sense for a nation founded on Enlightenment principles, yet populated by many orthodox Christians, to get such Christians to believe in this. And Witherspoon greatly helped in making this a reality (too successful—how many times do we hear today the religious right claim that this nation was founded on Christianity because the Declaration states that our rights come from the “Creator” which they interpret as the God of Biblical Christianity?). “Witherspoon could speak unreservedly of ‘natural liberty’ and ‘natural rights’; and of the ‘state of nature’ and like Locke…of its ‘inconveniences,’ inconveniences that caused men to leave it for the ‘social state.’ But in the same lecture he could admonish his listeners and readers to accept ‘Christ Jesus as he is offered in the gospel,’ for ‘except that a man be born again, he cannot see the kingdom of God.’ In a word, Witherspoon saw no conflict between the new political philosophy and the old religion, which is to say between the principles set down in the Declaration of Independence and what he understood as orthodox Christianity.” Id.

I should add, however, that Sheldon does not dispute, but acknowledges, that Witherspoon was a Lockean.

Wife-beating: Owen Courreges’ supposed trump card is really very easily dealt with. As Steve Dillard writes, The Ninth Amendment does not refer to common law rights alone, but to the natural rights philosophy of the Declaration of Independence. The common law is law in America only insofar as it is not inconsistent with the Declaration and the Constitution which is based on it. See generally State v. Palendrano, 293 A.2d 747 (N.J.Super.L. 1972). The right to free exercise of religion, for instance, was certainly not a common law right, but is a natural right which would be protected by the Ninth Amendment even if the Free Exercise Clause didn’t already protect it. Beating one’s wife is not a natural right, since a wife, as a reasoning adult human being has a right not to be beaten without her consent. It is so clearly established that natural rights cannot include the right to initiate violence on a nonconsenting party that those who would attempt to claim that it is a natural right are obviously dissembling, and reveal that they are not interested in a serious discussion of the issues.

On the other hand…I have now agreed twice with Steven Dillard. This means I simply must be wrong somewhere.

What the example of wife-beating proves, rather, is that analysis under the Ninth Amendment or the Fourteenth Amendment cannot be limited to tradition and history, as many conservatives would like too. So many traditions are violations of natural rights that the analysis must be based in natural law political philosophy, not mere history. This, for example, is why Lawrence v. Texas was rightly decided on natural law grounds even though it may be questionable as a matter of history.

Phew. There. I’ve undone the jinx of agreeing with Dillard.

Fame!: Thanks to Machine in the Ghost, a blog by a student at my alma mater, Chapman Law School in Orange, for the permalink.

FFC: This article, which I saw on How Appealing, argues that the Full Faith and Credit Clause would require states to recognize the gay marriages permitted by other states. But I explained some months ago that this is not correct.

Presumption of liberty: From a few months ago.

Just now:

M: Did you have pizza?

Me: Yeah, actually. It had been a long time since I had pizza, so I got one and ate the whole thing.

M: Yeah, I can see that. You're a large man. I imagine you eat a lot.

Dolley: Check out the Dolley Madison project website. Some wonderful pictures. The book, unfortunately, is less interesting.

Blogging: I started this blog April 1 (appropriately enough) of 2003. Since then I've posted about 511,000 words, which at my typing speed of 100 wpm is three and a half days of solid typing without a break. (as Kent Brockman would say, that may not sound like a lot, but keep in mind, it is a very big canyon.) And in all that time, I have changed the mind of...absolutely nobody, on absolutely no subject.

Where are de libertarian women at?: A sadly amusing article on the imminent extinction of our species, courtesy of Sarah Hempel.

Fame!: Thanks to so many for the links and kind words: Trivial Pursuits; Unlearned Hand; Demagogue; texasbestgrok; and, of course, Prof. Barnett himself regarding the Ninth Amendment discussion. Thanks also to Where HipHop and Libertarianism Meet for the link to my post on Frederick Douglass.

Giving up?: Courreges thinks I’m trying to rile him. Well, it wouldn’t be the first time that I’d riled folks, but it’s not done here out of an attempt to be obnoxious, but at the most from a desire to get to the truth of the matter, and at the least out of a zealous regard for individual liberty.

And it appears that Courreges is at least equally guilty of letting the debate slip from his fingers. He writes “Sandefur simply won’t abandon the view that there was any intent or understanding of the Ninth Amendment as being anything other than a rule of construction.” But I have never said it was anything other than that. In my most recent post, for instance, I said “the Ninth Amendment is a rule of construction that says that just because the Constitution doesn’t enumerate a right to run barefoot through sprinklers should not be construed to deny that there is such a right.” It was this point that I attempted to reiterate by citing the various sources such as Federalist 84. And if Courreges agrees, it would seem we have nothing to argue about. Courreges thinks the rule of construction is that the Amendment prohibits the federal government from expanding its powers on the basis of the stated rights. I do not disagree with that, either. The problem is that Courreges thinks that this rule of construction—that is to say, that people have rights other than those mentioned in the Bill of Rights—would somehow obliterate the state governments if applied to the states. This he has not shown. That applying the existence of “other rights” against states would somehow turn them into miniature federal governments simply does not follow—unless Courreges thinks that the residual sovereignty of the states may rightfully violate these other rights. And that, I suspect, is the pebble in our little shoe here. At least another Southern Appeal blogger suggests this. Bradey Clanton writes that “the sovereign people of the various states can recognize and protect whatever unenumerated rights they want. Think there is a right to abortion? Fine, protect it in the positive law. It would seem ironic to me if the amendment explicitly reserves these rights to ‘the people,’ and simultaneously authorizes federal courts to find other unenumerated rights that may then be imposed on the people to trump the rights they’ve chosen to protect. See, e.g., Romer v. Evans.” But the Ninth Amendment 1) refers to “the people,” not to “the states,” or to the people of particular states, as the Tenth Amendment does—it refers to “the people,” which is the same people as that to which the Preamble and the Declaration refer; 2) The Ninth Amendment is absolutely inconsistent with the theory that government (either state or national) has Blackstonian, unlimited sovereignty to do “whatever” it “want[s].” It is not written from the positivist point of view that regards abortion or other issues as merely matters of collective choice. 3) What rights, exactly, were “trump[ed]” in the Romer case? What was “imposed”? I happen to think that case was wrongly decided, but the use of the terms “trumped” and “imposed” sounds something like what I have been criticizing—this notion that somehow there is an inherent right to govern, which must be protected against the “trump” provided by those nasty old individual rights. Like the conversation between Richard, Joe, and Judge Bill, the use of this term suggests (though it only suggests) that Clanton believes that the Ninth Amendment is dangerous because it might stop some people from governing others without their consent. That’s not exactly calculated to elicit sympathy from those of us who believe that the onus is on those who would govern, not on those who would be free.

Incidentally, I’m quite sorry that Prof. Barnett has not written on the debate over on VC. Here, however, are some of his comments regarding the “incorporation” of the Ninth Amendment. I agree with them, and if I have sounded to Mr. Courreges like I was advocating any different position, I apologize:

Of necessity, the people retained their inalienable rights against the states as well as the federal government. This is evidenced by the swift incorporation of provisions similar to the Ninth Amendment into many state constitutions after Madison devised this express restraint. However, it was the Fourteenth Amendment that extended jurisdiction to the federal government to protect these rights from state government infringement, thereby altering the preexisting jurisdictional arrangement. This is not to claim that the Fourteenth Amendment somehow “incorporated” the Ninth, but that the Privileges or Immunities Clause extended the federal jurisdiction to protect the enumerated and unenumerated rights retained by the people against infringement by state governments.

Randy E. Barnett, Getting Normative: The Role of Natural Rights in Constitutional Adjudication, 12 Const. Comment. 93, 122 (1995) (emphasis added).

If the Privileges and Immunities Clause of the Fourteenth Amendment is viewed as establishing the same constitutional presumption in favor of individual and associational liberty against the states as the Ninth Amendment established against the federal government, then whether the unenumerated rights retained by the people are seen as protected by one provision or the other may be immaterial. Nonetheless, the reconception of the Ninth Amendment urged here would undermine the argument that the Fourteenth Amendment should be limited to a very selective incorporation of the Bill of Rights. Given that the Fourteenth Amendment extends the protection of constitutional rights to acts of state governments, the Ninth Amendment stands ready to respond to a crabbed construction that limits the scope of this protection to the enumerated rights (and even then to only certain of those rights).

Few would advocate preventing abuse of such expressed, but abstract constitutional provisions as the Equal Protection Clause or the Due Process Clauses by ignoring them. Rather, we prevent judicial abuse of open-ended provisions by formal and structural constraints. The proper way to control abuse of the Ninth Amendment is no different. If constrained in these ways, the judicial protection of unenumerated rights need not constitute the exercise of illegitimate 'legislative' power.

Randy E. Barnett, Reconceiving The Ninth Amendment,74 Cornell L. Rev. 1, 41-42 (1988).

Update: Ah! Finally!

Judicial review: The situation of republican government is fairly desperate today. What was promised as a protection of freedom has been transformed into a democratic absolute monarchy, in which politically powerful interest groups use their authority to despoil and oppress weaker groups. Our legislatures are populated by mobs of idiots and petty tyrants who are elected because they promise to enforce a “vision” by running the lives of other people. Religious fanatics use government to intrude into the private bedrooms of those they consider “deviants.” Advocates (they claim) of the poor use it to steal money from those who work, and give it to those who do not. Only one thing do all of these groups agree upon—their lifeblood residing in their ability to use government for these unjust and wicked projects, they are united only in their opposition to any attempt to limit government’s ability to oppress and abuse people.

Madison wrote that this warfare among interest groups could be combated only in two ways: 1) “by creating a will in the community independent of the majority,” which will be able to check the majority’s tendency to abuse the minority, and 2) “by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.” Judicial review is a half-hearted attempt at the first method. I say half-hearted because even the judiciary, even the life-tenured federal judiciary, is not impervious to this desire to abuse power—witness their frequent references to “what the people want,” and their refusal to restrain all but the most patently absurd abuses by the majority. Because the judiciary is appointed, distantly, by the majority, or even elected by it, it can’t resist the overwhelming urge to use the government to oppress. As Madison explains, this means that in a republic, the majority both make the law and judge it—they become judges in their own case:

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.... [Y]et what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail.

The problem with “judicial restraint,” therefore, lies precisely in its appeal to majoritarianism—the whole purpose of having a judiciary is to restrain the majority by creating a power that is, to some degree, “independent of the majority.” Yes, it’s imperfect. That’s why the legislature can control the judiciary’s jurisdiction, and why the judiciary can’t act without executive support. Yet, imperfect as it is, it is at least something.

Ideological predilections: In his view on the Ninth Amendment, the Curmudgeonly Clerk says “the Ninth Amendment does not enact Mr. Randy Barnett’s Libertarianism or anyone else’s ideological predilections.” Of course he’s paraphrasing Holmes’ Lochner dissent. I’ve always wondered about this phrase. If the Constitution doesn’t enact an ideological predilection, what the hell does it do?

Holmes claimed that the Constitution was created for people with fundamentally differing views as to the proper reach of society. But this is surely the opposite of the truth! A Constitution is written by people who basically agree on things, but differ as to details, and agree to a system by which they sort out those details. If the Constitution is created for people with fundamentally differing views, why does the Constitution distinguish between citizens and non-citizens; why does it require an oath of office; why does it refer unambiguously to “the blessings of liberty”? Even if all the Constitution does is set rules, those rules are based on underlying notions of what is right and good. As I’ve written elsewhere, Holmes’ remark

that a constitution is “made for people of fundamentally differing views” and is “not intended to embody a particular economic theory” can be questioned. A constitution is exactly where a particular political and economic theory is embodied. The United States Constitution explicitly protects private property, contracts, and even a gold standard.... Indeed, what is a constitution, if it is not an enactment of a particular economic and political system? Classical philosophers such as Aristotle and Augustine theorized that political society is (in Augustine’s words) “an assemblage associated by a common acknowledgement of right, and by a community of interests....” While such modernists as Holmes may have rejected this view, even their view, that society is only a means of organizing and bargaining for political power, would beg the question: On what premises does a society create the rules for that bargaining? Further, even if the Constitution is only a procedural document, the decisions that lead to those procedural arrangements are certainly based on at least an implicit judgment of good and bad. It is harder for the Congress, for example, to overrule the President’s veto than for the Congress to pass a law with the President’s consent. Ostensibly, this is because a law which the President does not approve is more likely to be a “bad” law than a law which both the President and the Congress agree upon. To have made the procedure (i.e., the power-sharing) more difficult in one case than in the other embodies a judgment of good and bad which can only be called a “particular political theory....” See also Charles A. Beard, An Economic Interpretation of the Constitution of the United States 324 (1946) (“The Constitution was essentially an economic document based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.”).

Timothy Sandefur, The Right to Earn A Living, 6 Chap. L. Rev. 207, 211 n.29 (2003). Perhaps the Constitution doesn’t enact Barnett’s views. Perhaps it doesn’t enact Marx’s views. But surely it enacts somebody’s views, and those views must reflect some ideological predilection. The Constitution was hotly debated by people who were concerned that it might not protect the liberties for which the American Revolution was fought. Its defenders insisted that it did; its detractors insisted that it did not; but neither of these parties threw up their hands and said “Well, that question’s irrelevant because a Constitution doesn’t enact ideological predilections.” Holmes cannot have been ignorant of this; I suspect that his statement is the biggest lie in the entire body of Constitutional law. At the very least, it is a convenient cover for the most absurdly unconstitutional things to masquerade as constitutional.

How conservatives view the judiciary:

Joe: I would like to do X, which is something that doesn’t harm anyone else.

Richard: Yeah, but I don’t like you doing X. It just bothers me. Therefore I’m going to force you to stop.

Judge Bill: Um, Richard, I’m sorry, you don’t have the right to interfere with Joe if he wants to do X.

Richard: Aaargh! Unelected judges taking away my freedom! Help! Help! I’m being repressed!

Interpreting the Ninth: Owen Courreges has committed a fundamental sin of interpretation: he has read the Constitution in a way that renders a provision redundant of other provisions, and hence deprives the Ninth Amendment of independent meaning. It is very well known that we ought not to do this, yet he says that “Sandefur believes that by asserting that my argument renders the Ninth Amendment redundant in the practical sense, that he can allege my interpretation is wrong.” Well, yeah! That is the rule.

He says I misrepresent him. He says he believes “The Ninth simply asserts that the federal government cannot assume powers from the Bill of Rights to get around the doctrine of enumerated powers.” But that is not what the Ninth Amendment says, and it is not what contemporary explanations of the Amendment say. This interpretation does not explain Federalist 84. It does not explain James Wilson’s speech. It does not explain Madison’s letter to Jefferson or his speech introducing the Amendment. It does not explain the plain language of the Amendment. The Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It does not say “The enumeration of rights shall not be construed to grant powers to the federal government” or “to deprive states of power.” We know that the Amendment could have said that if that’s what the drafters wanted to say—they did say something like that in the Tenth Amendment. No, the Ninth Amendment is a rule of construction that says that just because the Constitution doesn’t enumerate a right to run barefoot through sprinklers should not be construed to deny that there is such a right. As the Plainsman puts it, “the Ninth Amendment basically states an interpretive canon to be applied to the rights-protecting provisions of the Constitution…. In effect, the Ninth would be saying, ‘Congress, don’t try to pull any nonsense here; the fact that this constitution specifically prohibits, as a matter of basic law, the infringement of certain rights, does not mean that it is intended to disturb the legal status quo one way or the other with respect to other rights that citizens may currently enjoy.’” That is exactly right.

This complicates the incorporation question; the Ninth Amendment isn’t something like a warrant requirement—it’s not like we can say “well, from now on, states have to use warrants.” It’s a rule of construction that refers to natural rights. The Fourteenth Amendment protects the privileges or immunities of citizenship. What would it mean to apply the Ninth to the states? It would mean, as I said, that the onus is on those who would govern, not on those who would be free, at the state level. Can that be called “incorporation”? I’m not sure. We’ve chosen to describe it as such. Courreges claims that I’m interpreting the Ninth out of “a personal desire for it to mean something it doesn’t.” Yet he’s the one ignoring both the plain language and the contemporary exposition of the Amendment, not to mention the Reconstruction Era understanding of that amendment. (Yes, I know he quoted and then ignored the Reconstruction Era understanding.) I suspect that this charge is more appropriately aimed in the other direction.

Courreges actually reverses the Amendment’s meaning. He says it’s about protecting the states, rather than “the people” to whom it actually refers. “My position,” he says, is “that the Ninth Amendment was designed to limit the federal government to its enumerated powers. That’s what Madison meant when he spoke of ‘unenumerated rights.’” Yes, of course it was to do that—the whole Constitution was to do that. But it was meant to do that by saying that just because the Constitution doesn’t mention certain rights doesn’t mean that those things left out aren’t rights. “Applying the Ninth Amendment to the states, then, would require that we limit the states to the powers enumerated to the federal government.” What? Why? This does not follow. To apply the (correct understanding of the) Ninth Amendment to the states would mean that although the states have residual sovereignty, neither their sovereignty nor any legitimate sovereignty, can violate the natural rights of man. Courreges has provided us with no convincing reason to read the Ninth Amendment as if it says “The federal government can’t do anything not listed” (which, again, is what the Tenth Amendment says already), so he would have to do much more to convince us that applying it to the states would render all the states into miniature federal governments. Now, if he means that applying the concept of natural rights which underlies that Amendment to the states would limit the authority of the states, that is certainly true. And thrice blessed the Amendment for that!

Courreges quotes an article which asserts that “for Madison a right, is merely an exception to a ‘grant of power….’ In his view a constitutional right is not a ‘brooding omnipresence in the sky’; it is merely the reciprocal of an altogether mundane constitutional restraint on government…..” I very strongly disagree with this. Madison’s understanding of rights was extremely sophisticated, and was fundamentally a natural rights interpretation. In his essay “Sovereignty,” Madison wrote

Whatever be the hypothesis of the origin of the lex majoris parties, it is evident that it operates as a plenary substitute for the will of the majority of the society, for the will of the whole society; and that the sovereignty of the society as vested in & exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, whenever vested or however viewed.

Certainly Madison did not believe that “rights” was synonymous with “benefits provided by government out of money stolen from other citizens,” which is the way the term has come to be used even by conservatives. But Madison did not believe in Blackstonian sovereignty—he did not believe that a right was just something that the government chose not to govern. For him, the government could have no legitimate power to govern things that the people did not give to the government. What are the things that are “beyond the legitimate reach of sovereignty”? “Conscience” is one of them. Are there others? Yes. How do we know? Because of the Ninth Amendment. Madison did not believe that the state had the fundamental right to govern, or that rights were just exceptions to this rule. “In Europe,” he wrote, “charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.” I emphasize this because I think it suggests to us the reason for the conservative fear of the Ninth Amendment.

What is this fear? Well, the Plainsman tells us. “When and if the freewheeling Ninth ever becomes settled law, it will officially be time to stay home on Election Day, crack open a couple Heinekens, sidle up next to the tube, and leave everything to the robed ones,” he says. Now, it’s certainly true that judges, like all people in government, will tend to expand their power, and ought to be watched by the people jealously. But we should not be deluded by that fact into ignoring the reality that the legislature is a far, far more serious threat to our freedom than is the judiciary. Even if the courts were to assume power under the Ninth Amendment to dictate governmental forms to the states, all they could do is say no. They would only have the power to say “this law, enacted by the legislature, is unconstitutional for such-and-such a reason.” Yes, courts have certainly overreached themselves, and continue to do so today. But they cannot carry their plans into execution without the cooperation of the legislative and executive branches, and experience has shown very clearly that we have been oppressed by the legislature and the executive far, far more often than by the judiciary. The Plainsman’s reaction might be turned around on him: “When and if the judiciary defers to the legislature to the degree that conservatives want, it will officially be time to acknowledge that we belong to the legislature, and that the legislature has the power to bind us in all cases whatsoever.” I’ve asked before and I’ll ask again: what, precisely, do these people think is the job of the judiciary? I say the Constitution “was intended to secure to weak and unpopular minorities and individuals equal rights with the majority, who, from the nature of our government, exercise the legislative power. Any other construction of the constitution would set up the majority in the government as a many-headed tyrant, with capacity and power to oppress the minority at pleasure, by odious laws binding on the latter.” Wally’s Heirs v. Kennedy, 10 Tenn. 554, 557 (1831).

We must not allow ourselves to be spooked into thinking that the end of good government is for the judiciary to defer. History reveals that the worst abuses of Americans have proceeded from a combination of the legislature and the executive, and that “judicial restraint” has far more often been a license for these oppressors than a protection for our freedom. Of course we don’t want unelected judges running everything. But we do not want elected legislators running everything, either. The reason we have a constitution is to stop the legislature from governing certain things. The Ninth Amendment tells us that those “certain things” are not limited to the things specifically mentioned in the Bill of Rights—there are other things. What are they? Well, there you must consult history, law, political philosophy, and so forth. That is what the Ninth Amendment means. That is what the privileges or immunities clause means. Any other interpretation would tend toward legislative absolutism and to rendering the Ninth Amendment a nullity, and must therefore be a flawed interpretation.

Speaking of the Ninth Amendment: I for one am not tired of the subject, and Prof. Solum has some links.

Good for him!: This story at the Chicago Tribune requires registration, but if you register, you’ll see it says:

A Wilmette man who was cited for violating the village’s handgun ban after he shot an intruder in his kitchen has invoked U.S. Supreme Court rulings on sodomy and pornography laws to argue that the gun ban violates his privacy rights, his lawyer said.

Hale DeMar’s attorney has asked a Cook County circuit judge to dismiss his case and order the village to pay DeMar’s legal bills.

“I want the court to say, `The Village of Wilmette cannot come into his home and take his gun under this ordinance. They are invading his right to privacy,’“ said Robert Orman, DeMar’s attorney.

But legal experts said that although the defense strategy is original and possibly unprecedented, it is a long shot, because the courts have wide latitude to determine what is protected under constitutional privacy guarantees.

DeMar, 54, of the 0-99 block of Linden Avenue, shot a Chicago man accused of entering the family’s home twice within 24 hours. DeMar confronted him in his kitchen Dec. 29 and shot him in the shoulder and calf.

In January Wilmette charged DeMar with misdemeanors for illegally owning two handguns. He faces a fine of up to $750 if convicted.

In a counterclaim filed in Cook County Circuit Court, Orman wrote that the village and its gun-ban ordinance “punish DeMar for protecting himself and his family” and “strip DeMar of his constitutional right to privacy in the home.”

Orman cites two recent Supreme Court rulings that upheld privacy rights within a person’s home: a ruling that overturned Texas’ sodomy law last summer and an earlier ruling in a Georgia case that said it was not illegal to have pornography in the home.

Orman said he is not trying to overturn the gun ban but to put a “judicial gloss” on it that would render it unenforceable in a self-protection case such as DeMar’s.

Tim Frenzer, the village’s attorney, said DeMar’s defense is “completely lacking in merit.”

He should win, but probably won’t. (Thanks to RRND for the pointer).

No! No! Applying the Second Amendment to the states would destroy the ability of local and state governments to function (they obviously need to have more than the very limited powers explicitly reserved to the federal government)!

Bad book: On the recommendation of a friend, I recently picked up The Political Philosophy of James Madison by Garrett Ward Sheldon. It’s extremely disappointing so far. I’m only about halfway through it, but so far it is very superficial, and draws unwarranted conclusions, skipping from assumption to assumption with real rapidity. Sheldon argues that Madison was extremely heavily influenced by Calvinist Christianity. While I suspect that this is the truth, Sheldon’s argument for it is very weak; it rests really on two observations: Madison studied with John Witherspoon, who was a Calvinist, and Madison often referred to the bad traits of character with which government would have to deal.

But these prove nothing. I studied with devout Christians, too—my history professor was a Baptist preacher! And it hardly proves that Madison was Christian that he often referred to the failures of character to which humans are prone; everyone does, and everyone did at the time of the ratification. Nor does Madison’s use of religious phrases in his public papers, such as his references to “Providence” in the Federalist prove anything, since then as now biblical references were standard fare for public conversations. I often express myself in such phrases, and often quote the Bible. In fact, in comparison with his contemporaries, what stands out about Madison’s writing is how rarely he refers to the supernatural. Madison referred to God even more rarely in his private papers than did the notoriously secular Jefferson. And his references to God even in his public papers were always remarkably ambiguous—his Memorial And Remonstrance is perfectly balanced between secular and sectarian justifications for religious freedom. This is why Walter Berns describes Madison’s religious views with some derision in his essay James Madison on Religion And Politics, in John Samples, ed., James Madison And The Future of Limited Government 135, 141 (2002): “Madison…apparently believed that a purely secular education would suffice [for republican government]…. The young had to be educated, he said, and to that end, in addition to reading, writing, and arithm[e]tic, he favored ‘some knowledge of Geography [and of] the Solar system [and of] the Globe we inhabit, the Nations among which it is divided and the characters and customs which distinguish them….’ Then, as if to show that he was not completely indifferent to their moral character, he closed by saying ‘any reading not of a vicious species must be a good substitute for the amusements too apt to fill up the leisure of the labouring classes.’”

I know of no passage of Madison’s writing that expresses unambiguously that he was a genuinely religious man. That’s more than I can even say for the notoriously secular Jefferson. Now, I may very well be wrong, but even if so, surely it is not enough to prove that Madison was a Calvinist to merely assert that he studied under a Calvinist and that he refers to human frailties in the Federalist! Sheldon makes this argument, moreover, in writing that is studded with unnecessary references to Christianity which do nothing but demonstrate that Sheldon is himself a Christian, and reveal that this is less of a serious analysis of Madison’s views than a religious tract, designed to prove that Madison was a Christian. With this title, I had hoped for something that might discuss the influence of, say, Aristotle, and Montesquieu and others on Madison. But in fact, Aristotle is mentioned only once, briefly, and Montesquieu not at all in the index! And even the tract-style argument does not appear to be entirely fair in all cases. For instance, Sheldon writes that “Elsewhere in his political writings, Madison again expresses this Christian suspicion of human nature and human motives. He refers ‘the follies of mankind’; the ‘vanity and impertinence’ of cities; and the ‘vices’ of the Articles of Confederation.” So the use of the word “vices” is proof that Madison thought in the gloomy, misanthropic atmosphere of Calvinism? Sheldon plays a few rhetorical tricks, too: “Madison asserts that cities especially abound in ‘food enough for [man’s] Vanity and impertinence.’” Now, Sheldon inserted that word “Man’s.” That turns the sentence into a much more profound statement about human folly than Madison himself actually wrote. Of course Madison meant the vanity and impertinence of human beings, since nobody else can be vain or impertinent, but to say “Man’s vanity” has a much more religious sound to it, and Sheldon’s insertion of the word sands down the sentence so that it fits more smoothly with his thesis.

I am reminded in this connection of James G. Lennox’s review of Sciabarra’s Ayn Rand: Russian Radical. What he said of that book can even more emphatically be said here: “A central task for the historian of ideas is to provide a narrative which explains an intellectual innovation, supported by evidence in favor of that explanation. Part of the narrative aims to reconstruct the salient influences on the innovator in question. The historical and cultural milieu provide possible influences and experiences—the problem for the historian is to find evidence of the actual influences on the innovator’s purposeful inquiries.... [But t]he direct evidence that the youthful [James Madison] was positively influenced, through [Witherspoon], by the [Calvinism] of [the 18th Century] is thin. In [Chapter 1] however, such influences are taken for granted.... Absent the requisite direct evidence for a philosophical connection to [Calvinism,] [Sheldon] intertwines such claims of kinship with [Christian] redescriptions of [Madison’s] ideas, thus giving the appearance of indirect evidence for such a connection.”

Editorial policies: I should probably mention about how I post things…I do sometimes go back and edit posts after they’ve been put up. Only if I make major changes do I put an “update” at the end of a post. Posts to Freespace do not go through drafts; they are written stream-of-consciousness style, and I add links afterwards; often after I hit the publish button. This accounts for my sometimes haphazard approach to arguments. If you want something more thoroughly organized, read one of my articles, instead. And of course, any emails received regarding the blog may be posted, although unless you give me permission to use your name, I will post them as notes from Mr. Richard Feder, of Fort Lee, New Jersey. (For you whippersnappers out there who don’t get that, by the way, it’s from an old Saturday Night Live routine.)

Ninth Amendment again: Owen Courreges’ argument is that the Ninth Amendment is solely a statement that certain things are outside the purview of the federal government; it was “specifically designed to restrict the federal government to its enumerated powers described elsewhere in the Constitution....” This is a mistake, however, in that it conflates the Ninth with the Tenth Amendments. The two are complimentary, but not redundant as Courreges’ reading would make them. The Ninth Amendment says that just because some rights are listed in the Constitution does not mean that things not mentioned are open to the government’s regulation; it doesn’t just restrict the feds to enumerated powers—that’s the Tenth Amendment (and Article 1 section 1, which says “all legislative power herein granted....”)

The first major flaw in Courreges’ analysis is his tacit assumption that incorporation makes no change to the Ninth Amendment. Even if he’s right that Madison viewed the Ninth Amendment only as doing X, that does not tell us whether the Fourteenth Amendment keeps it only doing X. The Fourteenth Amendment is not a window; it is a lens; its framers viewed the Bill of Rights with over a half-century of experience, with judicial decisions and the Civil War, all informing their view of the Bill of Rights. It would be singularly anachronistic, and a violation of basic interpretive guidelines, to assume that the 1868 understanding of the Ninth Amendment (which was incorporated to the states if the Fourteenth Amendment does incorporate it to the states) was the same as the 1791 understanding of that Amendment. The passage from Senator Sherman which I quoted earlier demonstrates just this point: Sherman understood the Ninth Amendment to stand for something much different than Courreges’ view (of the Ninth as being nothing more than redundant of the Tenth). It is certainly true that one cannot separate the idea of limited power from the Ninth Amendment. But one cannot separate the Ninth Amendment from the Founders’ belief that, in Jefferson’s words, “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 second major flaw, though, is in Courreges’ statement that applying the Ninth Amendment’s protection of “other rights” to the states would be a calamity to local government; indeed, he says it would “invalidate the Tenth Amendment, which explicitly reserves powers to the states,” and would “destroy the ability of local and state governments to function.” Think for a second what he’s saying—for the Constitution to protect individual liberty would threaten the power of the states to govern! Of course, precisely the same thing could be said of every constitutional provision. If this were true, the answer would be the same as what Madison said in The Federalist,

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.... [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.

But in fact it is not true. In reality, protecting our freedom under the Ninth Amendment would not interfere with legitimate government, since no legitimate government can have any interest in violating these rights. I say it again: the onus is on those who would rule, not on those who would be free. And that is what the Ninth Amendment teaches us.

Incorporation and other matters: Although I agree with Owen Courreges that the Bill of Rights did not apply to the states before the ratification of the Fourteenth Amendment, it’s important to point out that the suggestion that it did is not as far-fetched as Courreges claims. For one thing, the text of the Amendments certainly does not make clear—with the single exception of the Establishment Clause—that the Bill applies only to the federal government. Second, Amar writes that

From the 1830s on, antislavery crusaders began to develop, contra Barron, a “declaratory” interpretation of the Bill of Rights that viewed the Bill not as creating new or merely federalism-based rules applicable only against federal officials, but as affirming and declaring pre-existing higher-law norms applicable to all governments, state as well as federal. On this declaratory view, for example, although the First Amendment directly regulated “Congress,” it also affirmed a pre-existing right to free expression. According to Barron contrarians, when the Amendment referred to “the freedom of speech,” it thereby implied a pre-existing legal freedom. Perhaps this legal freedom of speech could not be enforced against states in federal court, some contrarians conceded, but the First Amendment reference to “the freedom of speech” was itself evidence that a true legal right against all governments existed, a right that states were honor-bound to obey even in the absence of a federal enforcement scheme. And what was true of the freedom of speech was also true of the other rights and freedoms explicitly declared in the remainder of the Bill of Rights—the First Amendment freedom of religious exercise, the Fourth Amendment right against unreasonable searches, the Fifth Amendment entitlement to just compensation, and so on. This declaratory theory took shape in a world where many Southern states had enacted extremely repressive laws to prop up slavery—censoring abolitionist speech and press, suppressing antislavery preachers, implementing dragnet searches of suspected fugitive slaves and slave-sympathizers, imposing savagely cruel punishments on runaway slaves and their allies, and indeed violating virtually every right mentioned in the federal Bill. With the passage of the Fourteenth Amendment, contrarians sought to write their views into the Constitution itself, and to overrule Barron....

Akhil Reed Amar, Hugo Black And The Hall of Fame, 53 Ala. L. Rev. 1221, 1224-25 (2002).

However, I think Barron was correct. One piece of evidence Courreges did not mention is that Madison urged what he considered the most important amendment—one which would have prohibited states from violating the freedoms of speech, religion, and so forth, and this failed. Madison considered this a terrible flaw; that certainly suggests that the Amendments which were passed were not seen as applying to the states.

As to Dillard’s comments...

1) I don’t side with Story; I side with Madison, whom I consider a pretty reliable source as to the meaning of the Constitution. I also side with the text of the Constitution, which says “We, the people of the United States...do ordain and establish this Constitution,” rather than “we, the states....” Seems awfully authoritative. At the Virginia Ratification Convention, Patrick Henry challenged Madison on this: “give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.” Madison answered, “Who are parties to it? The people—but not the people as composing one great body; but the people as composing thirteen sovereignties.... Should all the states adopt it, it will then be a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large. In this particular respect, the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people.” Evidence on this head could be multiplied more easily than would be profitable. The Constitution is not a wholly national act (that’s the Story interpretation), but it is not a league between sovereign states, either. It is a Constitution of divided sovereignty, partly national, and partly federal.

2) Dillard’s allegedly “clear distinction” is of course not clear at all, but simply begs the question. He says that abortion, “sodomy” and so on are rights that are “created out of whole cloth.” Why? Because he says so. Of course, the cases which discuss these subjects are long and thorough examinations of constitutional principles, and are at least attempts to draw conclusions about what those principles tell us in the context of new times and circumstances. Roe, for instance, says that the rights of due process and of privacy mean thus-and-such in the context of abortion. Dillard says his approach “would simply recognize well established rights in existence at the time of ratification.” But those of us who agree with Lawrence see that as exactly what the Court was doing in that case—recognizing the well established right of people to engage in private adult consensual sexual activity in the privacy of their own homes—not “creating” a “right to sodomy,” which is so unfair, so inaccurate, so thoroughly refuted a characterization of both Lawrence and the Bowers dissent, that it immediately robs anyone who utters it of any credibility on the matter. Nowhere in any of these cases has the court ever explicitly “creat[ed] new rights out of whole cloth based on generalized (and entirely subjective) notions of liberty.” Now, Dilliard may disagree with the outcome of these cases, certainly. He may even think that the court is just wasting its time coming up with extraordinarily clever ways of disguising its diabolical attempts to create rights on subjective notions. But exactly the same thing could be said about the Fourth Amendment cases with which he agrees, and with equal validity. Certainly one who disagrees with the outcome of Kyllo could say, “Why, the court’s just creating a new right out of whole cloth based on generalized notions of liberty,” and Dillard would employ the same arguments in responding to that charge that we employ when responding to the like charge with regard to Lawrence. My point is, we must take each other at face value as far as the legal arguments are concerned. If we all refuse to speak to each other on the same terms, but insist on either mischaracterizing the cases or considering them as just a big sham, then we all might as well take our marbles and go home. Let us instead address the merits of the arguments presented in those cases. Dillard can say that he doesn’t think that the Fourteenth Amendment means thus-and-such in the abortion context, but he must not deny that in Roe and other cases, what the Court has at least attempted to do is to apply old principles in new contexts.

In other words, there is no meta- level difference between the analysis applied in Roe, Lawrence, and Kyllo. The reasoning within the cases may be wrong, but all three are instances in which the Court is drawing out the rays of the Constitution to see how they shine on present circumstances and issues. And if there is no meta- level distinction, then he can object only to the particular reasoning, not to some allegedly obvious distinction between cases that “invent” rights and cases that “discover” rights.

3) Dillard gets the distinction between strict construction and originalism wrong. Originalism is, indeed, an attempt to inquire into the principles which informed the provisions of the constitution by understanding where the framers were coming from. (And not, as its critics claim, an attempt to tie the world to the views of particular people at a particular time.) But strict construction means that we interpret the Constitution as narrowly as possible, so that whatever is not expressly granted is withheld from the grant of federal authority. I am both a strict constructionist and an originalist, but strict construction isn’t relevant to the points we’re discussing.

Update: Sandefur, you ask, are you saying that the Ninth Amendment creates rights? No. Nothing in the Constitution creates rights. Nature creates rights. The Constitution protects them; the Ninth Amendment “retain[s]” them. It is nothing but a rule of construction, which might be accurately translated thusly: “Do not read the Constitution the way Robert Bork does,” or, more precisely, “Just because it’s not in the Constitution doesn’t mean it’s not a right; whatever the breadth of residual sovereignty might be, it cannot legitimately violate natural right.” So what would it mean to “incorporate” that to the states? It would mean that state power could be challenged on the ground that it violates natural rights. In this, the Ninth Amendment simply constitutionalizes the Declaration of Independence’s statement that the free and independent states may only do “Things which Independent States may of right do.”

Now, Mr. Dillard says that I fail to address the points I claim to be addressing. I’m really not sure what I’ve overlooked. Dillard claims he would “limit” the Ninth Amendment to “what it meant” in 1791. Of course, he doesn’t mean that literally, he means he would consult history to inform him of how to apply the Ninth Amendment to modern circumstances and questions. But that is precisely what Barnett and other defenders of Lawrence are advocating. He claims that modern cases have “invented” rights, but he can’t explain how he distinguishes “inventing” rights from the regular process of legal interpretation which are at least apparently going on in the cases he complains about. Finally, he appeals to a compact theory of the Constitution which is fundamentally wrong, contrary to the repeated explanations of the framers, and originated in an error by Thomas Jefferson which was exploited by slavocrats in their attempt to destroy the Constitution. Nevertheless, because I am such a charitable Christian soul, I defended Mr. Dillard’s tepid defense of pre-incorporation incorporation; I wrote that he was not so off base as Courreges claims. I have at last found the passage from Amar’s book that makes this point, and I present it here out of the deep love I bear to poor, beleaguered Steven Dillard. Prof. Amar writes,

In the fifteen years before Barron, a considerable number of considerable lawyers implied in passing or stated explicitly that various provisions in the Bill did limit the states. Writing for the Court in 1819, Justice William Johnson obliquely suggested that the Seventh Amendment’s guarantee of civil juries applied to states [Bank of Columbia v. Okely, 17 U.S. (4 Wheat.) 235, 240-42 (1819)]; and the following year he stated even more explicitly in a separate concurrence that the double-jeaopardy clause “operates equally upon both [state and federal] governments,” [Houston v. Moore, 18 U.S. (5 Wheat.) 1, 33-34 (1820)] although even here his statement was not free from ambiguity…. That same year, though, the New York Supreme Court stated in dictum that the double-jeopardy clause “operates upon state courts” even where both prosecutions were for state-law crime, and in 1823 the Mississippi Supreme Court appeared to agree [People v. Goodwin, 18 Johns. 187, 200-01 (N.Y. Sup. Ct. 19820); State v. Moor, 1 Miss. 134, 138 (1823)]. In 1824, this view of the double jeopardy clause was pressed in the Massachusetts Supreme Court, yet neither the government’s attorney nor the judges appeared to challenge it [Commonwealthy v. Purchase, 19 Mass (2 Pick.) 521, 522 (1824)]…. The following year William Rawle published a widely read treatise on the Constitution in which he argued at length that virtually all the general provisions of the Bill of Rights bound the states [William Rawle, A View of the Constitution 120-30 (1825)]. And as late as 1833, the year Barron came down, we find Justice Baldwin on circuit implying that the Second and Fourth Amendments applied against states [Johnson v. Tompkins, 13 F. Cas. 840, 849-52 (C.C.E.D. Pa. 1833); see also Magill v. Brown, 16 F. Cas. 408, 419, 427 (C.C.E.D. Pa. 1833)]….

Akhil Reed Amar, The Bill of Rights 145 (1998).

Fame!: My article, Can You Get There from Here? How The Law Still Threatens King’s Dream, published in Journal of Law And Inequality is now on Westlaw at 22 Law & Ineq. 1.

War on Wal-Mart: My friend Larry writes, “If you were a journalist, how would you describe the phenomenon that Walmart, through its remarkable efficiency, has been benefitting hundreds of millions of people by not raising, and in some cases reducing, the prices of staple grocery products during the past few years? Well, if you work for Reuters you describe it this way: ‘U.S. Foodmakers Blame Wal-Mart for Stunted Prices’

“Get a load of these quotes: ‘Fresh Del Monte is not the only U.S. food company that has been forced to swallow rising costs.’ Forced to swallow rising costs? You mean that Walmart is out there working its ass off for the buying public to make sure none of us have to pay any mor e for basic foodstuffs than the lowest price at which the manufacturers are willing to sell it? That, despite the wishes of food manufacturers to charge more for their products, Walmart will only buy from those that give its customers the very best deal? Yes, evidently to this journalist the best way to describe that phenomenon is by reference to the resentment it causes in the minds of those food producers who wish it were otherwise.

“‘Even those who have managed to eke out price gains say the meager rise does not come close to covering their costs.’ Eke out price gains? I suppose since journalists apparently take no courses in economics or business they have to figure out a way to to put their bloated literature and humanities schedules to some use....”

How sad: And what a strange freak accident. Let’s hope the tort lawyers don’t destroy all paintball as a result.

More on the Ninth Amendment: Steven Dillard’s argument regarding the Ninth Amendment is pretty interesting. He makes two errors, but his view is very unique and deserves further discussion.

First error: he writes “I would restrict the unenumerated rights protected by the Ninth Amendment to those in existence at the time of ratification—i.e., 1791).” This is ridiculous. There is no text to suggest that this is the proper interpretation of the Ninth Amendment. And it’s impossible. In 1791 the First Amendment cannot possibly be said to have protected the right to publish things on the Internet. Yet no reasonable interpretation of the First Amendment (i.e., “press”) could possibly ignore the Internet today. That is interpretation; that’s how the law works, and it is impossible to “restrict” the rights protected by the First Amendment to “those in existence at the time of ratification.” The same is true of the Ninth Amendment. Rights are not things that can be moved around and held in one’s pocket. They are principles, and as such they must apply anew to people in different circumstances. That does not mean we make them up off the top of our heads; but they also cannot be restricted to a particular historical moment. Whether the Ninth Amendment protects a certain right will be answered, certainly, by historical examination—as Senator Sherman said—but that isn’t, and can’t be, the only consultation. Whether “the freedom of the press” includes the Internet is the same sort of question as asking whether “the equal protection of the laws” also applies to homosexuals. That’s how judicial review works. And that’s how rights work. As Charles Sumner said,

an old and barbarous case is a poor answer to a principle, which is brought into activity by the demands of an advancing Civilization, and which once recognized can never be denied.... [J]urisprudence is not a dark lantern, shining in a narrow circle, and never changing, but a gladsome light, which, slowly emerging from original darkness, grows and spreads with human improvement, until at last it becomes as broad and general as the light of Day.

Second, Dillard says he “subscribe[s] to the notion that the federal constitution created a ‘compact’ between the federal government and the States.” This notion is baseless, and I have refuted it time and time again. Moreover, it is inconsistent with his argument that the Bill of Rights applies directly even without the intercession of the Fourteenth Amendment. There’s a respectable argument for that; Amar describes it briefly in his Bill of Rights, for instance. But the argument is that the Constitution applies to the people, and not the states. There is no text in the Amendments to suggest that they only apply to federal power. The Fourth Amendment, for instance, says that “the right of the people to be secure” shall not be violated. What people is this? It’s the same people mentioned in the Ninth and Tenth Amendments. And what people is that? “We, the people of the United States” who ordained the Constitution—not the states, the people. This, in turn, is the same “one people” who dissolved their political bands with England. When they did so, their common law rights became theirs as part and parcel of their citizenship in America—not in the separate states. Their common law rights transferred to their federal citizenship. And this is what is so wrong about the Slaughter House Cases. That case is correct in distinguishing between state and federal citizenship; it errs in holding that the common law right to earn a living is a state, rather than a federal, right. Dillard’s failure to come to grips with this fact accounts for his strange statement that “there is a third sovereign involved in the [American constitutional] process—‘the people.’” This can’t be the case; there is only one sovereign in America, or anywhere: the people. They then vest some of their sovereignty in the state, and some in the federal, governments. These governments are creatures of the sovereignty of the American people, not the peoples of particular states.

But as to his argument that the Bill of Rights applies directly to the people—I think that’s a very respectable argument. Of course Barron v. Baltimore put the kibosh on it early, but it’s a pretty sensible claim. A while ago I found an old law review article that makes this argument. I’ll rifle through my papers today and see if I can find it and post some of the more interesting bits. (And this is Sandefur talking, so when I say old, I mean old.)

Um...: Professor? It’s Pilate.

The Ninth Amendment and incorporation: My apologies to Owen Courreges for attributing to him Bork’s views of the Ninth Amendment. On reexamining his earlier post, I was indeed mistaken to think that he was defending Bork’s position. Courreges’ view is far less dishonest than Bork’s. But not less wrong.

Courreges says that “the Ninth Amendment does not apply to the states,” because “[i]t was never intended to apply to the states,” and, I suppose, for other reasons.

The Ninth Amendment says that the Bill of Rights is not exhaustive, but that there are other rights that we all have. The Fourteenth Amendment, meanwhile, says that states may not deprive citizens of the privileges or immunities of American citizenship. What are those privileges or immunities? They are, among other things, natural rights—precisely the same natural rights to which the Ninth Amendment refers. To support incorporation under the Fourteenth Amendment, but not the Ninth Amendment, is to say that the Fourteenth Amendment protects only the specific things listed in the first ten amendments. This is, as Amar has shown, theoretically impossible in at least some cases—the Establishment Clause being the primary example. Instead, the privileges or immunities clause must be read more broadly than direct incorporation. And how will that be done? How ought courts to interpret the privileges or immunities clause? Well, I just happen to have Senator John Sherman right here. Tell us, Senator, how will judges determine what rights are protected by the Privileges or Immunities Clause?

[S]ome of [these rights are] ingrafted in the Constitution of the United States, some of them in the constitutions of the different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights; they were innumerable, depending upon the laws and the courts as from time to time administered.... [J]udicial tribunals...will look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers to the Declaration of American Independence, to every scrap of American history, to the history of England, to the common law of England, the old decisions of Lords Mansfield and Holt, and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens.

Wait a minute, Senator. Are you saying that the privileges or immunities clause is really a sort of Ninth Amendment in and of itself, as applied to the states? Sounds like you’re advocating an activist judiciary!

What are the rights, privileges and immunities of a citizen of the United States? Are they contained in this Constitution? Are they prescribed by the Constitution? Are they given by the Constitution? Not at all. The old Constitution has not the word “rights” in it. There is no provision of the old Constitution of 1787 that has any bearing, directly or indirectly on this question except that provision of the second section of the fourth article which declares that—

“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

It was made one of the great objections to this Constitution, by the anti-Federalists of the school of Patrick Henry, that this Constitution was a Constitution of powers and not of rights.... [T]hey insisted upon the old amendments to the Constitution with bristle all over with the word “rights,” and which do secure to the American citizen certain important rights.

But these amendments to the Constitution do not define all the rights of American citizens. They define some of them. The Constitution itself amply secures some of the rights of American citizens, but the ninth amendment expressly provides that—

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

There are certain rights enumerated in these articles of amendment, but they are not all the rights of the American citizen; very far from it. Where do we find the record of those rights? The fourteenth amendment then coming in says:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of citizens of the United States.”

What are those privileges and immunities? Are they only those defined in the Constitution, the rights secured by the amendments? Not at all. The great fountain head, the great reservoir of the rights of an American citizen is in the common law.... Our rights are not limited to those given by the Constitution. What are those rights? Sir, they are as innumerable as the sands of the sea…..

Now, that might seem awfully open-ended to Courreges. He wrote earlier of his concern that the Ninth Amendment through the Fourteenth Amendment might (gasp!) stop states from oppressing their citizens. I explained that his complaints were really complains about the existence of judicial review in the first place, but he did not reply. Nevertheless, open-ended as it may be, it’s historical evidence from one of the principal authors of the Fourteenth Amendment. I look forward to Courreges’ answer.

Fame!: Thanks to Demagogue and Fried Man for the links. I didn’t know that Blogspot is banned in China. How cool! Anyway, I’m intrigued by Fried Man’s statement “I am not willing to live in a society where sick sadists are allowed to use blow torches on puppies to get their kicks and then sell videotapes of their exploits.” Is there any evidence that this has ever been done in any society ever, even before the advent of animal cruelty laws? Is there any evidence that people would buy such videotapes? I know we all enjoy bitching about how these kids today are just awful and the world’s going to hell and whatnot, but are there any such videotapes? And is there any evidence that laws against animal cruelty make any difference to the sort of person who would do such a thing? I suspect not. The notion that an evaluation of political philosophy can be done on the issue of (entirely hypothetical) burning puppies is so immature, that I find it difficult to take it seriously.

Wrap ups: Prof. Vu writes, “Oh no! My week is up and I’ve done such a crummy job blogging. Sorry, this week ended up being a rather crazy one for me. There was some stuff I wanted to post however...

Mr. Censor, listen only to me please: Doc Magik had a thought-provoking response to my comments concerning the Janet Jackson incident, but I think he misapprehends my point. I did not mean to defend Ms. Jackson. She was either grossly negligent (if you believe the story that it was an accident) or tasteless (if you don’t). Either way, I thought she came off looking foolish. However, my point was that you could construct a reasonable argument that there is a lot of other content on television that is just as objectionable if not more so than Janet Jackson baring her breast. Censorship, if we do not limit it, could easily be used to ban television programs that millions of Americans enjoy. After all, one man’s trash is another man’s treasure.

Doc Magik, if I understand him correctly, would decide what is trash and what is treasure by differentiating between “doing” (Janet Jackson) and “teaching” (the reality television shows I talk about). In other words, the 1st Amendment protects you if you’re teaching something (e.g., standing fully clothed on a street corner advocating nudity) but not if you’re doing something (e.g., standing on that street corner naked). There are at least two problems with this distinction. The first is that “teaching” is actually “doing” something. If that were not the case, then I do nothing for a living. But in all seriousness, teaching is an act, and one that can have serious consequences. Suppose, for example, that a man “teaches” that racial minorities are subhuman, explains in detail how to make a bomb and then encourages his listeners to plant the bombs in places where minorities gather. It makes no sense to say that this activity is “protected” while a woman baring her breast is not.

The second reason the distinction between “teaching” and “doing” can’t work is because “doing” can be “teaching.” Take the example of Ms. Jackson. The only really pernicious effect of Ms. Jackson baring her breasts was that it taught a lesson we don’t want our kids to learn. After all, I haven’t read of any person, adult or child, who went blind, suffered a heart attack or was otherwise injured by the bared breast. Thus, the only principled reason on which to oppose her action was that it might teach girls that it is acceptable to bare their breasts in public or teach boys that it is acceptable to tear at a woman’s blouse and expose her breast. Suppose that you or your child saw the breast, but that within seconds no one would have any memory of the incident. Would the bare breast matter in that case? If you said no, then the only effect you are worried about is the teaching effect. If we could be assured that there would be no bad lessons learned from the incident, because our memories were wiped, then we really only care about what Ms. Jackson’s actions taught.

We have to accept that it is a part of human nature to have personal and cultural prejudices. However, we must also accept that these prejudices are diverse. If we set about deciding what can be banned and what can’t be banned without sort of neutral principle (assuming such a neutral principle can even exist), we are left to the rather arbitrary standards of our own prejudices. And while it might be nice if the laws banned what we don’t like and allowed what we like, there is no principled way to decide whose prejudices are taken into account. The Germans, for example, would argue that our FCC has it completely backwards. They would hardly bat an eyelash over bared breasts on television, but try to broadcast a man spouting Nazi dogma in Germany and you will quickly find yourself in jail.



Grandma wishes she only got run over by a reindeer: Here’s some news from the provinces that will test your libertarian tendencies. Grandma gets attacked by her great-grandson’s dog and has to have her arms amputated. The authorities want to put the dog to sleep, but the “owners” (we aren’t told whether this is Grandma, the granddaughter or the great-grandson) fights it. But wait, in a twist only a law professor could love, it turns out to be much worse. The dog has a history of attacking other dogs and has attacked Grandma before. Still, Grandma says she’s “fine.” Would you take the dog away and put it to sleep? Or do you let people continue with their really, really bad ideas?



Bad Things Can Happen to Good People: Here’s another story from the provinces that spurred a great deal of thought. Three 11-year old girls make up a story about being attacked by a homeless man to avoid getting into trouble for coming home late. The problem is that the police arrest an actual homeless man, who then ends up being held in jail for eight months until one of the girls finally breaks down and confesses the truth. Now, the police have arrested the girls (handcuffs and all) and are considering arresting one of the girl’s parents for failing to report the lie. I admit that my first reaction was, “Lock’em up and throw the key away.” I’m not big into the coddling attitude that underlies the article. I think many parents today spoil their kids and I see this attitude in many of my younger students, who have a sense of entitlement to things that older generations thought were privileges. Kids who do something heinous like this should be punished, not given excuses for why they did what they did. But then, again, aggressively prosecuting these girls would be punishing the one girl who did have a conscience and would discourage people from recanting their stories to the police.

Where do the parents fit in all of this? Can an eleven-year old possibly come up with a terrible lie like this if they are being raised properly at home? This reminds of a story from several years ago in which some high-school boys were involved in a “game” where they competed to have sex with the greatest number of girls at their school. The story was more salacious than substantive, and disappeared from the headlines shortly after it started, but one aspect stuck in my mind—while almost everyone, from the police to the principal to the PTA president, denounced the boys, several of the boys’ parents were publicly quoted as saying something to the effect of “What’s the big deal? Boys will be boys.” One wonders whether the boys learned their reprehensible attitude at home or whether the parents felt that they had to say those things to protect their children. In the case above, one of the girl’s mothers was investigated for failing to report the lie after she learned of it. Did she already have a lax attitude towards dishonesty or was she merely protecting her child?

Perhaps most sobering is what this story says about our criminal justice system. Perhaps the worst thing about the OJ Simpson trial was that it gave the public a view of the criminal justice system that was the exception and not the norm and it cemented the erroneous perception that the system favors the defendant. The reality, of course, is that most defendants are not all that different from the homeless man, Eric Nordmark, who was held for eight months—bereft of the resources or knowledge to fight a system intent on putting people into prison. I have little doubt that the Nordmark would have been convicted had he gone to trial. This is true despite the lack of sophistication inherent in the star witnesses and the rather shoddy police work done in this case (e.g., the girls were asked to identify their assailant in a photo lineup but the lineups exactly the same for each girl, allowing the girls to conspire to pick the same suspect by number). The irony, of course, is that the system turned on the girls with equal ferociousness, as if the twelve-year old girls (they’re a year older now) were such an immediate danger or flight risk that they needed to be arrested at school and lead away in handcuffs.

The only positive aspect of this story is the fact that Nordmark is on his way to forgiving the girls. The police response that this is merely “posturing” to make the police look bad in preparation for a potential lawsuit seems incredibly uncharitable after what they did to this man. In any case, as a legal matter, the girls’ subsequent prosecution and Nordmark’s opinion of the arrests would be irrelevant to any lawsuit against the city and no judge in his right mind would ever allow a jury to hear about them.

That’s a lot of content—the merits of deterrence, the limits of parental responsibility, the weaknesses of the criminal justice system and the possibility of forgiveness—all in one article, from the Orange County Register no less.

The Guarantee Clause: Prof. Eastman writes “in Massachusetts—well, that one is not about taxes, but the threat to republican government (that is, government by the people, not imposed on the people) is the same” as other violations of the Guarantee Clause. But the Massachusetts situation does not violate the Guarantee Clause.

The Guarantee Clause was written to enable the federal government to put down coups d’etat. Madison had said that among the vices of the Articles of Confederation was the “Want of Guaranty to the States of their Constitutions & laws against internal violence.” He explained that

The confederation is silent on this point and therefore by the second article the hands of the federal authority are tied. According to Republican Theory, Right and power being both vested in the majority, are held to be synonimous. According to fact and experience a minority may in an appeal to force, be an overmatch for the majority, 1. If the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one third only may conquer the remaining two thirds. 2. One third of those who participate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excludes them from a right of suffrage, and who for obvious reasons will be more likely to join the standard of sedition than that of the established Government. 3. Where slavery exists the republican Theory becomes still more fallacious.

When the Constitutional Convention convened, therefore, Madison moved to add such a guarantee. It was applied both to acts of the federal and state government because “the executive of a state may possibly be at the head of [a] Rebellion. The Genl Govt. should enforceobedience in all cases where it may be necessary.” John Dickenson said “thought it of essential importance to the tranquility of the U—S. that they should in all cases suppress domestic violence, which may proceed from the State Legislature itself, or from disputes between the two branches where such exist.”

In Federalist 21 Hamilton explained that:

The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan…. Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government.

Tench Coxe explained that the Clause would stop any group “who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large.”

The Clause does not prohibit the people from changing their State Constitutions through legal procedures, of course:

If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a GUARANTY of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.

Justice Joseph Story later wrote that “the PEOPLE of each State have a right to protection against the tyranny of domestic faction, and to have a firm guarantee, that theirpolitical liberties shall not be overturned by a successful demagogue….” Joseph Story, A Familiar Exposition of the Constitution of the United States 295 (1840).

Of course, in Luther v. Borden, 48 U.S. (7 How.) 1 (1849), the Supreme Court famously refused to enforce the Guarantee Clause, describing it as a political question. But contrary to popular notions, Luther did not say that all Guarantee Clause cases were political questions; it just applied the standard political question analysis as we’ve all come to know it. We know this is true because in the years after Luther, the Court heard several cases involving the Guarantee Clause, and never suggested that it lacked authority to enforce the Clause. See, e.g., Minor v. Happersett, 88 U.S. 162 (1874); Forsyth v. City of Hammond, 166 U.S. 506 (1897). In Duncan v. McCall, 139 U.S. 449 (1891) and Taylor v. Beckham, 178 U.S. 548 (1900), the Court provided its most thorough analysis of the Clause. McCall quoted Daniel Webster in explaining that the Guarantee Clause would be violated if a state suddenly and undemocratically altered its form of government:

the right of suffrage must be protected and its exercise prescribed by previous law, and the results ascertained by some certain rule…. [T]hrough its regulated exercise each man’s power tells in the constitution of the government and in the enactment of laws… [T]he people limit themselves in regard…to certain forms of the conduct of elections…[and] our liberty is the liberty secured by the regular action of popular power, taking place and ascertained in accordance with legal and authentic modes…. [T]he constitution and laws…[guarantee] the idea of results achieved by orderly action under the authority of existing governments….

Id. at 461-62. Taylor agreed, explaining that the Clause would be violated if the state acted in violation of “the Constitution and laws of the state,” or in violation of “a valid statute creating a state office in a constitutional manner….” Id. at 573. In that case, since “[t]he commonwealth of Kentucky is in full possession of its faculties,” and “the legislative, executive, and judicial departments of the state are peacefully operating by the orderlyand settled methods prescribed by [the State’s] fundamental law,” the Court held that “the[ ] grounds of complaint…[were] the result of the Constitution and laws under which they lived and by which they were bound?” Id. at 580.

It was not until the 1910s that the Court said that the Guarantee Clause was totally unenforceable in a court of law. See, e.g., Pacific States Telephone & Telegraph v. Oregon, 223 U.S. 118 (1912). The Court signaled that this was probably a mistake when it noted in New York v. United States, 505 U.S. 144 (1992), that “perhaps not all claims under the Guarantee Clause present nonjusticiable political questions.” Id. at 185.

What does the Guarantee Clause prevent? It prevents coups, violent and otherwise—it prevents sudden and undemocratic changes in the operation of a state government, which deprive citizens of the participatory rights that they formerly enjoyed. It does not prohibit all examples of judicial review—particularly where the people create the judiciary through their state constitutions. The Clause only prohibits the authorities of a state from ignoring the state’s Constitution. It does not prohibit the state’s Supreme Court from striking down a law as a violation of the state or federal Constitutions. Eastman’s argument—that “imposed” government violates the Guarantee Clause, would suggest that any instance of judicial review violates the Clause. Nor is the Massachusetts situation properly describable as “imposed” government. The people create the judiciary. They give it authority to strike down laws that violate the Constitution. Like Odysseus sticking wax in his ears, the people create the judiciary as a check on their own tendency to be swayed by temporary impulses or demagogues. If the Massachusetts situation is “imposed” government, then all instances of judicial review are.

Animal rights: Prof. Machan passes along these links to his sssays “Why Humans May Use Animals” and “The Myth of Animal Rights.”

A right without a remedy: Owen Courreges’ argument about the Ninth Amendment is taken almost verbatim from Bork, and is demonstrably wrong. The Ninth Amendment was written to prevent courts from adopting an exclusio alterius reading of the Bill of Rights. Federalist 84 explained that. So did James Wilson: “If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete….”

Madison explained this problem to Jefferson; Jefferson replied that there still should be a bill of rights; so Madison said “My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration.” So he wrote the Ninth Amendment, noting that if these rights “are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will naturally be led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights….” Barnett has explained this at length already.

Courreges seems to concede these things, but just says that the Amendment gives no authority to federal courts to enforce these unenumerated rights. What value a “right” listed in the Federal Constitution would have without any ability in a federal court to enforce such a right is a question he does not answer, nor does he answer for Madison’s explanation that, indeed, courts will enforce such rights if they are in the Constitution. But perhaps he would say that the Ninth Amendment is really a rule of construction; it makes sense only in a world of strict construction of the government’s powers; that, like the Tenth Amendment, what it really announces is that the federal power is limited to those things actually listed in the Constitution and no more, and that the reason for the problems we have in interpreting the Ninth Amendment is that it was drafted by people who had no idea that we would reach to such absurd levels of federal authority; that the problem isn’t in the penumbra, but in the emanation; that were the federal government limited as it ought to be, we would not find the Ninth Amendment such a problem. He might point to Mr. Sedgwick’s comments in the debate over the adoption of a Bill of Rights. If that were his answer, he’d be absolutely correct.

The problem is, what to do about the Fourteenth Amendment? Looking to Madison and Wilson, we can say that the Ninth Amendment reflects the fact that the framers were not legal positivists; it is a protection of the other rights mentioned in the Declaration of Independence. But looking at the Fourteenth Amendment—the prohibition against states depriving people of their privileges or immunities—well, we can no longer dodge the issue as a federalism matter. These amendments do something. The evidence says that what they do is prevent the federal government—as well as the state governments—from violating “other rights.” Unless we would rob these provisions of all coherent meaning, they must refer to the natural rights philosophy of the Declaration of Independence. That is why understanding that philosophy is of principal concern.

Now, Courreges writes that under the Ninth Amendment, “rights given to individuals [should] not be used as an excuse for the federal government to expand its reach.” First, of course, rights are not given to individuals; they have rights regardless of government. Second, how precisely would such rights become an “excuse” for “expanding” government? I think here we see what I have pointed to time and time again—the notion of the wolf; that he has the right to regulate the lives of others and if someone stops him, he complains that he has been deprived of something dear to him. Joe has the right to free speech. John deprives him of that right. Joe complains to the federal government and the federal government comes in and stops John. John then complains, “Hey! Joe is using his rights to expand the federal government beyond its reach!”

The onus is on those who would govern, not on those who would be free.

Weak spots: Every political theory has a problem with children. They don’t make much sense, because they can’t really think for themselves. And at one point, it’s irrational to suggest that they have rights; at another they obviously do have rights. Where do we draw that line? Natural rights theory does not answer that question; it can draw big boundaries, but the precise moment, no. Just like with age limits for drinking. Obviously a 2 year old can’t responsibly drink alcohol, and obviously a 30 year old can. That’s as much as natural rights can tell us. Where, precisely do we draw the line? That decision is made politically. Obviously a single cell without a mind has no rights. Obviously a grown adult does. Infants grow into their rights. There is no single point, therefore, where rights attach—particularly since rights are a corollary of reason, which does not come upon one suddenly. We therefore draw the line politically. That’s one reason that Roger Pilon has criticized Roe v. Wade—it draws a single line for the nation, when it is probably best to draw that line jurisdiction-by-jurisdiction.

I don’t think that the libertarian argument leads to murdering infants and buggering dogs. This is, yet again, a smokescreen thrown up by those who have no answers themselves. Could a libertarian society ban cruelty to animals? Absolutely. Would a libertarian society ban cruelty to animals (in those instances where such cruelty offends us)? Almost certainly.

It is necessary to reiterate these points because the Curmudgeonly Clerk writes that “Sandefur (1) concedes that his position does logically lead to the propositition that the law may nor properly intervene to forbid abortion, infanticide, euthanization of the mentally handicapped, and (2) that he hasn’t the foggiest idea how to rescue his theory from this infirmity.” This is not quite accurate. I do concede that the law may not forbid abortion at the moment of conception: the embryo has no right to life valid against the mother. But the state may prohibit, say, partial-birth abortion for the same reason that it may, and probably will, prohibit the burning of cats. It certainly can prohibit infanticide. It certainly can prohibit involuntary euthanasia. The exact lines, however, are unclear as they must always be unclear in any political discussion—or so I think. Perhaps the Clerk does know, but has just failed to explain, why a state may prohibit all abortions, but not the killing of yeast; why a state may prohibit the eating of horses, but not the eating of cows; why we may not kill an embryo but may imprison and batter children.

I do not, and have never, said that libertarianism would prohibit the state from protecting the right of an infant to its life. I think infants do have a right to life, because they have reason, although it is rudimentary. (This rudimentariness accounts for the fact that children can be imprisoned and battered.) I do not think animals have any rights, but the state may legitimately prohibit cruelty to animals as a public good, like any other public decency law. And, again, I challenge the Clerk to provide us with a coherent, or more thorough, answer to the problems of euthanasia or infanticide or whatever.

Finally, I would like to propose what I think is a far better angle of attack for those disposed to attack libertarianism: the problem of race. Among the weaknesses of libertarian theory, I think the biggest one is exemplified by the problem of racial discrimination in the wake of the Civil War: sharecropping. What is the solution to that? Private networks of racial discrimination sprang up, for which (as David Bernstein has also pointed out) a truly laissez-faire solution does not appear evident. In a society totally respective of freedom of contract, there is no reason why whites could not, for instance, deprive blacks of their right to vote by simply ejecting any black person who registered to vote from their land. I think libertarianism has no real answer to this, and if the Clerk’s looking for the Exhaust Port in the Death Star of libertarianism, I think it lies here.

Animal rights and libertarianism: The Curmudgeonly Clerk has a lengthy response to my earlier comments on animal rights. He calls this “libertarianism's inability to account for even a modicum of animal rights,” but that phrase begs the question, because it is up to the Clerk to prove that animals have rights before he can establish that libertarianism’s “inability to account” for them is a flaw. Anyway, he describes a drunk man who rapes dogs and then writes, “On Sandefur's account, this dog has no right not to be forced against its will to have sexual relations, notwithstanding its obvious lack of consent.” That is correct. A dog has no right not to be raped; dogs have no right not to consent to anything that human beings do to them, and indeed I would be surprised to learn that any human had ever asked a dog’s consent for anything ever! So yes, if the law does nothing more than to protect the natural rights of individuals, which libertarianism strongly suggests, a man may set his cat on fire if he wishes.

A libertarian society might still prohibit such things if its laws go beyond only protecting individual rights; just as it might prohibit public nudity or stop people from painting the F word on the side of their houses. There is no natural right to stop people from doing these things, but so long as compensation is provided, the government can go beyond protecting individual rights. (Such compensation does not mean, in every case, that the government will write each person a check. “Implicit, in-kind compensation” might compensate through an increase in property values without further compensation being provided.)

The Clerk seems to think that in a free society, people will go around setting cats on fire. But I don’t think that is true. First, we know that in the Victorian age, during the era when America came closest to being a free society, was the first time that concern for the mistreatment of animals really became a serious matter. Indeed, the ASPCA was started during this period. Second, we know that the reason people refrain from setting cats on fire has almost nothing to do with laws against it. I have had many, many cats in my life, and I have never set one on fire. But not because I have ever thought “Oops, if I do that, I could go to jail!”—no, it’s because I like cats. Most people, by far the most, don’t burn cats because they like cats, or at least, aren’t the sort of people who burn cats. And we all know how mistreatment of animals goes over in American society. Crushing moral opprobrium comes down on such people. Those who might be tempted to harm animals are, I think, far more likely to be deterred by moral opprobrium than by the law. It is moral outrage, not the law, that has decreased the level of cruelty by our food industry already; groups like PETA have put much more energy into publicizing moral opprobrium than lobbying for new legislation.

I emphasize this because I think people tend to underemphasize how effective this tool is—how much more effective than law. Even the Clerk does: he says “What, pray tell, is the libertarian moral argument against nonconsensual bestiality, if it is conceded that animals have no rights, other than ‘Yuck!?’” There is none. But so what? “Yuck” is the most powerful argument there is—far more powerful than a law. (Indeed, being prosecuted under bestiality statutes dissuades only because it would be so embarrassing to be arrested for such a thing, so even the legal sanction is powerful only due to the Yuck factor.) What is the Clerk’s moral argument?


The Clerk doesn’t go for it because, as he asks, “what would be the basis of societal condemnation other than moral disgust, which Sandefur rejects as a ‘meaningless’ basis for condemnation?” Here I have to admit, I don’t have an answer. I’ve thought long and hard on this very issue and I have no answer for it. I am bothered by mistreatment of animals, because I love (most) animals, and I don’t like to see a creature suffer. It is a “Yuck” factor, as the Clerk says, but I don’t know a rational explanation for it. That doesn’t mean there is no rational explanation; just that I don’t know it yet. The Clerk is correct that while I am “disgusted by such treatment of animals (i.e., the rape of dogs makes [me] exclaim ‘Yuck!’) while simultaneously contending that [my] disgust is not an appropriate basis for state action and, therefore, that the state cannot justifiably interfere with such behavior.” The sole appropriate basis for state action is to prevent the violation of individual rights (or on a very limited basis to enforce agreements to provide for certain public goods). Until the Clerk can establish that animals have rights, the only way that animal cruelty laws can be justified is as a public good, if it is one.

The Clerk doesn’t think moral opprobrium can do the job of law (despite the fact that it is doing it right at this moment and always has, historically) because I have difficulty explaining why it is immoral to hurt animals. To this I have two answers. First, as I said, the fact that I don’t know the answer to this riddle doesn’t mean there’s not a rational explanation of it. I invite the Clerk, or, of course, others, to explain it to me. Second, most people don’t share my scruples about understanding moral and political issues; most people, including many libertarians, are Christians, or other varieties of emotionalists, and believe that the fact that it causes animals pain is sufficient to prove that something is wrong. Moral opprobrium is all about what the neighbors think, just as it is today. It may, as the Clerk says, “seem[ ] a trifle strange to regard ‘Yuck!’ as a satisfactory basis for castigating others on moral grounds if one has rejected it as a basis for forbidding the repulsive conduct in question on the understanding that ‘Yuck’ is devoid of intellectual content.” But that is, in fact, what we all do. I feel “yuck” about many things—mariachi music; yoghurt; the new Scion; people who curse in casual conversation; women who smoke cigars. I can’t tell you the intellectual content of these things, but I choose not to associate myself with them. That’s what “opprobrium” is all about.

The Clerk admits “that a theory of rights that includes animals is problematic…but no more problematic than Sandefur’s account.” That’s ridiculous. A theory of animal rights is totally incoherent. My account means that a person may kill dogs. But we already kill cows and consider that okay. That’s because nobody has a coherent answer for the problem of animal cruelty. The fact of the matter is that people are offended by eating dogs but are okay with eating cows; offended by eating horses but okay about eating turkey; offended by killing eagles but okay with killing pigeons—people do not have rational explanations for any of these things. They are, for the most part, matters of mere aesthetics. As aesthetic matters, then, government’s involvement can go no farther than to provide for them as public goods, not as a protection of individual rights—and that may be acceptable in a libertarian society. So the Clerk’s specific objection dissolves on closer explanation. I would like the Clerk to tell us on what basis (some kinds of) cruelty to (some kinds of) animals may be prohibited, but not other things.

I don’t have the time here to respond to the Clerk’s points on abortion; I think I’ve answered them sufficiently elsewhere anyway. The Clerk unfairly characterizes my earlier arguments by claiming that I defend infanticide and murdering the mentally retarded. I’ve never done such a thing, and it is singularly discomforting to find the Clerk—usually so scrupulous about being accurate in arguments—mischaracterizing my positions on these situations. It is simply not true, neither in my recent posts nor in my earlier posts on the subject of abortion, that such “propositions are unavoidable under [libertarian] principles.” For the Clerk to set up such straw men means two things: 1) The Clerk knows he cannot attack libertarianism fairly, so he must use this dodge; 2) The Clerk has no rational alternative—you notice he has not offered one—so he takes my unusual honesty in admitting the shortcomings in libertarianism as an opportunity to cover up the fact that he has no answer for these issues, either.

The Clerk is adopting the common conservative tactic of skimming over these issues, failing to provide his own answers, and then concluding that, because libertarianism would relegate animal cruelty laws to the level of public goods (not fail to enact such rules, mind you!)—because a dog has no moral right to life—because the Clerk is not satisfied by the fact that neither I nor anyone else at all can provide a rational explanation for the fact that they are bothered by some limited subset of cruelty to animals—because of these things, the Clerk concludes that libertarianism is somehow inherently flawed. He throws sand in your eyes—the sand of dog-rapes and burning cats—and then says therefore libertarianism has inherent flaws. What sort of arguments are these? I expected much more from the Clerk, who, in the past has been much more scrupulous and fair in his arguments. Let us have his answer—why is it okay to ban dog raping but not dog-choking, as in the choke chains that are commonly available on the market? Why is it okay to ban cat burning but not cow electrocuting? Why is it okay to totally ban the eating of horses, but not okay to totally ban the eating of chicken? Do fish have the same rights as ungulates? And if any of these things have rights, why do we not enforce them between one animal and another? And if a child has rights, why is it okay to falsely imprison and batter them? More fundamentally, why is it immoral to burn a cat but not immoral to burn a yeast? They are both equally God’s creatures, are they not? Is the answer pure majoritarianism?

I suspect the Clerk will have to admit that there are no easy answers for these things; that no political philosophy yet devised has answers for all of these things; that libertarian answers are far better than the answers provided by other political philosophies—if for no other reason than that it allows for the social experimentation that allows for more exploration which might eventually answer these questions; and finally, that if libertarianism’s great failure is the fact that it can’t answer the question of animal cruelty, that that fact alone would make it the best political philosophy yet devised, when contrasted with the soul-stifling politics of conservatives, the institutionalized robbery of liberalism, and the far crueler, and even more mindless philosophies developed by all of our competitors.

Another blog bites the dust: Very sorry to see En Banc go. I enjoyed it a lot.

Republican government: At Southern Appeal is a question I’ve heard a few times now—doesn’t the gay marriage issue violate the Republican Guarantee Clause? I am now a bit of an expert on the Guarantee Clause, and the answer is no. The Clause does not prevent the orderly operations of civil government. The Massachusetts situation does not violate the Guarantee Clause because there was no change in the form and operations of the state government. The Clause prohibits a sudden, undemocratic change in the functions of a state’s government, whether from outside or inside, and thus inherently protects participatory rights. It is not violated by every instance of judicial review, which is what the proposed interpretation of the Clause would lead to. You may disagree with the Massachusetts Supreme Judicial Court (although I still have yet to hear a rational argument against that decision) but you cannot reasonably describe it as a coup—unlike another recent state court decision I could mention. As for the San Francisco thing, that might come closer, but only if the state courts simply ignore state law, which has not yet happened; the case has only begun. Let it work itself out.

The conservative hysteria will stop at nothing, I think.