law

A New Constitution for a New Republic

INTRODUCTION

Secession is much in the air. I have said much about it during the past four years. (See this post and the posts listed at the bottom of it.) I will have more to say about the separation of liberty-loving States from the United States. However, I will not counsel secession, which probably is fruitless even though it is legal, Justice Scalia’s dictum to the contrary notwithstanding.

Instead, a future post will propose a treaty of division. I will make the case that secession is legal, offer (in detail) a treaty of division as a beneficial alternative to secession, address practical and ideological objections to division, and discuss its advantages to all parties.

Left-wing opponents of division are likely to charge that the New Republic, as I like to think of it, would be inimical to the rights that Americans now enjoy under the Constitution, as amended and interpreted. I would answer that charge by offering the following new constitution, which would more than adequately safeguards the liberty rights of all who live under it. The most cynical (i.e., left-wing) opponents of division will not acknowledge the sincerity of a commitment to liberty, of course, but nothing will sway them, in any case. The new constitution, along with my proposal, will be aimed at persons of good will who are prepared to act in good faith for the good of all Americans.

The main problem with the Constitution of the United States is not its meaning; it is the fact that inappropriate meanings have been imputed to it because it is too often vague and ambiguous. The following Constitution for the New Republic of America is not only far more specific than the present Constitution of the United States — and more restrictive of the powers of government — but it also includes more checks on those powers. For example, there are these provisions in Article V:

Congress may, by a majority of three-fifths of the members of each House present, when there is a quorum consisting of three-fourths of the number of persons then holding office in each House…. provide for the collection of revenues in order to pay the debts and expenses of the New Republic…. [emphasis added]

*   *   *

A judgment of any court of the New Republic may be revised or revoked by an act of Congress, provided that such any revision or revocation is approved by two-thirds of the members of each house and leads to a result that conforms to this Constitution.

Then there are Articles VII and VIII, Keeper of the Constitution and Conventions of the States, which open thusly:

The responsibility for ensuring that the legislative, executive, and judicial branches adhere to this constitution in the exercise of their respective powers shall be vested in a Keeper of the Constitution. The Keeper may review acts of Congress, the executive branch, and judicial branch that have the effect of making law and appropriating monies.

*    *    *

Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of the government that is established by this constitution. Such conventions (hereinafter “convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

On top of that, there is Article IX, which authorizes petitions and subsequent elections for the revocation of a broad range of governmental acts and the expulsion of members of Congress, the President, Vice President and justices of the Supreme Court. Also, a constitutional convention may be called pursuant to a successful petition.

To the extent that Articles VII, VIII, and IX would inhibit presidential and congressional ventures into unconstitutional territory, so much the better.

This new Constitution also provides for secession, the threat of which might further help to preserve its original meaning.

The new Constitution is below the fold. (more…)

Law and Liberty

Law comprises the rules which circumscribe human behavior. Law in the United States is mainly an amalgam of two things:

  • widely observed social norms that have not yet been undermined by government
  • governmental decrees that shape behavior because they (a) happen to reflect social norms or (b) are backed by a credible threat of enforcement.

Law — whether socially evolved or government-imposed — is morally legitimate only when it conduces to liberty; that is, when

  • it applies equally to all persons in a given social group or legal jurisdiction
  • an objector may freely try to influence law (voice)
  • an objector may freely leave a jurisdiction whose law offends him (exit).

Unequal treatment means the denial of negative rights on some arbitrary basis (e.g., color, gender, income). As long as negative rights are not denied, then a norm of voluntary discrimination (on whatever basis) is a legitimate exercise of the negative right to associate with persons of one’s choosing, whether as a matter of personal or commercial preference (the two cannot be separated). True liberty encompasses social distinctions, which are just as much the province of “minorities” and “protected groups” as they are of the beleaguered white male of European descent, whose main sin seems to have been the creation of liberty and prosperity in this country.

Law is not morally legitimate where equal treatment, voice, or exit are denied or suppressed by force or the threat of force. Nor is law morally legitimate where incremental actions of government (e.g., precedential judicial rulings) effectively deny voice and foreclose exit as a viable option.

If government-made law ever had moral legitimacy in the United States, the zenith of its legitimacy came in 1905:

[T]he majority opinion in [Lochner v. New York] came as close as the Supreme Court ever has to protecting a general right to liberty under the Fourteenth Amendment. In his opinion for the Court, Justice Rufus Peckham affirmed that the Constitution protected “the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” (Randy Barnett,  “Is the Constitution Libertarian?,” p. 5)

But:

Beginning in the 1930s, the Supreme Court reversed its approach in Lochner and adopted a presumption of constitutionality whenever a statute restricted unenumerated liberty rights. [See O’Gorman & Young, Inc. v. Hartford Fire Ins. Co. (1931).] In the 1950s it made this presumption effectively irrebuttable. [See Williamson v. Lee Optical of Oklahoma (1955).] Now it will only protect those liberties that are listed, or a very few unenumerated rights such as the right of privacy. But such an approach violates the Ninth Amendment’s injunction against using the fact that some rights are enumerated to deny or disparage others because they are not. (Barnett, op. cit, pp. 17-18)

This bare outline summarizes the governmental acts and decrees that stealthily expanded and centralized government’s power and usurped social norms. The expansion and centralization of power occurred in spite of the specific limits placed on the central government by the original Constitution and the Tenth Amendment, and in spite of the Fourteenth Amendment. These encroachments on liberty are morally illegitimate because their piecemeal character has robbed Americans of voice and mooted the exit option. And so, we have discovered — too late — that we are impotent captives in our own land.

Voice is now so circumscribed by “settled law” that there is a null possibility of restoring Lochner and its ilk. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt.

As Thomas Jefferson observed in 1774,

Single acts of tyranny may be ascribed to the accidental opinion of a day; but a series of oppressions, begun at a distinguished period and pursued unalterably through every change of ministers, too plainly prove a deliberate, systematic plan of reducing [a people] to slavery.

Having been subjected to a superficially benign form of slavery by our central government, we must look to civil society and civil disobedience for morally legitimate law. Civil society, as I have written, consists of

the daily observance of person X’s negative rights by persons W, Y, and Z — and vice versa…. [Civil society is necessary to liberty] because it is impossible and — more importantly — undesirable for government to police everyone’s behavior. Liberty depends, therefore, on the institutions of society — family, church, club, and the like — through which individuals learn to treat one another with respect, through which individuals often come to the aid of one another, and through which instances of disrespect can be noted, publicized, and even punished (e.g., by criticism and ostracism).

That is civil society. And it is civil society which … government ought to protect instead of usurping and destroying as it establishes its own agencies (e.g., public schools, welfare), gives them primary and even sole jurisdiction in many matters, and funds them with tax money that could have gone to private institutions.

When government fails to protect civil society — and especially when government destroys it — civil disobedience is in order. If civil disobedience fails, more drastic measures are called for:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup. (Thomas Sowell, writing at National Review Online, May 1, 2007)

In Jefferson’s version,

when wrongs are pressed because it is believed they will be borne, resistance becomes morality.

A New, New Constitution

I have further revised my revision of the Constitution of the United States (earlier version here). The new, new version is below the fold.

Another blogger once said of such efforts that

[a]ll the Constitution really needs is some well-placed “And we mean it!” clauses:

–The Ninth Amendment…and we mean it!

Privileges or Immunities…and we mean it!

–Taking property only for public use…and we mean it!

And so on.

Maybe abolish the well-intentioned but subsequently corrupted Necessary & Proper Clause, clarify the meaning of “regulate” in the Commerce Clause to return it to its intended denotation (i.e., “to make regular,” or “to standardize”) and of “commerce” to “that which is not agriculture or manufacturing” (i.e., trade).

The rest is all bells and whistles.

Au contraire: The devil, as they say, is in the details. The main problem with the Constitution is not what it means but what meanings can be imputed to it because of vagueness and ambiguity. What the Constitution really needs is a lot of loophole-closing and more checks on the legislative, executive, and judicial branches, all of which have subverted and twisted the Constitution‘s intended meanings.

“My” (unitalicized) Constitution (as distinguished from the real Constitution, to which deference is owed but too seldom given) is not only far more specific than the original — and more restrictive of the powers of government — but it also includes more checks on those powers. Specifically, there is this provision in Article V:

A judgment of any court of the United States of America may be revised or revoked by an act of Congress, provided that such any revision or revocation is approved by two-thirds of the members of each house and leads to a result that conforms to this Constitution.

Then there are Articles VII and VIII, Keeper of the Constitution and Conventions of the States, which open thusly:

The responsibility for ensuring that the legislative, executive, and judicial branches adhere to this constitution in the exercise of their respective powers shall be vested in a Keeper of the Constitution. The Keeper may review acts of Congress, the executive branch, and judicial branch that have the effect of making law and appropriating monies.

*    *    *

Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of the government that is established by this constitution. Such conventions (hereinafter “convention of the States”) may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

On top of that, there is Article IX, which authorizes petitions and subsequent elections for the revocation of a broad range of governmental acts and the expulsion of members of Congress, the President, Vice President and justices of the Supreme Court. Also, a constitutional convention may be called pursuant to a successful petition.

To the extent that Articles VII, VIII, and IX would inhibit presidential and congressional ventures into unconstitutional territory, so much the better. Gridlock is good thing when it clogs Washington’s corridors of power.

The new Constitution also provides for secession, the threat of which might further help to preserve its original meaning. (more…)

Obama’s Law

Obama seems bent on nominating a woman (preferably a black or Hispanic one) to succeed Justice Souter. (See, for example, the top-10 list of likely nominees, at The Ninth Justice.) There’s nothing wrong with having a woman on the Supreme Court. But Obama’s evident zeal to nominate a woman  speaks volumes about his approach to the law.

The law, to Obama, isn’t a set of rules to protect the honest and — most importantly — limit government. Obama’s law know no constitutional bounds; it is a recipe that combines “empathy” (i.e., cheap compassion), political payoff, and power-lust.

Penalizing “Thought Crimes”

Nat Hentoff, writing at RealClearPolitics, observes with dismay that

the press remain[s] mostly silent about the so-called “hate crimes law” that passed in the House on April 29[.] The Local Law Enforcement Hate Crimes Prevention Act passed in a 249-175 vote (17 Republicans joined with 231 Democrats). These Democrats should have been tested on their knowledge of the First Amendment, equal protection of the laws (14th Amendment), and the prohibition of double jeopardy (no American can be prosecuted twice for the same crime or offense). If they had been, they would have known that this proposal, now headed for a Senate vote, violates all these constitutional provisions.

This bill would make it a federal crime to willfully cause bodily injury (or try to) because of the victim’s actual or perceived “race, color, religion, national origin, gender, sexual orientation, gender identity or disability” – as explained on the White House Web site, signaling the president’s approval. A defendant convicted on these grounds would be charged with a “hate crime” in addition to the original crime, and would get extra prison time.

The extra punishment applies only to these “protected classes.” As Denver criminal defense lawyer Robert J Corry Jr. asked (Denver Post April 28): “Isn’t every criminal act that harms another person a ‘hate crime’?” Then, regarding a Colorado “hate crime” law, one of 45 such state laws, Corry wrote: “When a Colorado gang engaged in an initiation ritual of specifically seeking out a “white woman” to rape, the Boulder prosecutor declined to pursue ‘hate crime’ charges.” She was not enough of one of its protected classes.

Corey adds that the state “hate crime” law – like the newly expanded House of Representatives federal bill – “does not apply equally” (as the 14th Amendment requires), essentially instead “criminalizing only politically incorrect thoughts directed against politically incorrect victim categories.”

Whether you’re a Republican or Democrat, think hard about what Corry adds: “A government powerful enough to pick and choose which thoughts to prosecute is a government too powerful.”

But James Madison, who initially introduced the First Amendment to the Constitution, had previously written to Thomas Jefferson on the passage of the Virginia Statute on Religious Freedom: “We have in this country extinguished forever … making laws for the human mind.” No American, he emphasized later, would be punished for his “thoughts.”

However, doesn’t the House “Hate Crimes Bill” state that nothing in the legislation shall “prohibit any expressive conduct protected from legal prohibition” – or speech “protected by the free speech or free exercise clauses in the First Amendment”?…

This legislation, certain to be passed by the Senate, will come to the Supreme Court….

[The justices] should … remember that the Fifth Amendment makes clear: “nor shall any person be subject for the same offence to be twice put in jeopardy.” But the House “hate crime” bill allows defendants found innocent of that offense in a state court to be tried again in federal court because of insufficiently diligent prosecutors; or, as Attorney General Eric Holder says, when state prosecutors claim lack of evidence. It must be tried again in federal court!

Imagine Holder as the state prosecutor in the long early stages of the Duke University Lacrosse rape case!…

Consider the infamous murder of Matthew Shepard by Russell Henderson and Aaron McKinney. It is evident that Matthew Shepard’s murder — like the mass slayings at Columbine and elsewhere — has been used cynically by advocates of one agenda or another. The agenda is gay rights in the Shepard case; it is gun confiscation in the school-shooting cases.

Those who are rushing to legislate against “thought crimes” should confront these questions: Would Henderson and McKinney’s crime be less heinous if Shepard wasn’t killed because of his homosexuality (a strong possibility)? In other words, why should it more wrong to kill a homosexual because he’s a homosexual than to kill a homosexual for some other reason, or to kill a straight, white male for any reason? Dead is dead, and therein lies the real crime.

If it is more wrong to kill a person because of a personal characteristic than simply to kill a person, consider the case where A kills his neighbor, B, because A dislikes having B as a neighbor. Should neighbor-killing be declared a hate crime? If so, then why not declare all crimes against persons to be hate crimes, and be done with it? That, at least, would comply with the Constitution‘s guarantee of equal-protection, assuming (wrongly, no doubt) even-handed application of the law.

The law should penalize crime, and not presume to read the minds of perpetrators, or — as Nat Hentoff reminds us — grant greater protection to some classes of persons than to others.

A Prediction

It seems likely that General Motors will become a vassal of the United Auto Workers union and the federal government. Which means that GM will survive only because U.S. taxpayers pick up the tab in order to preserve the pensions of UAW members and keep them employed at above-market compensation. Similar arrangements may come to pass in other (effectively) nationalized industries — banking and health care, most notably (but not exclusively).

Nationalization of the auto, banking, and health-care industries (among others) will prove to be the straw that — when piled on Social Security and Medicare/Medicaid — breaks the back of the American economy. How so? The effective tax rate — the true cost of supporting Social Security, Medicare/Medicaid, nationalized industries, and the ever-growing panoply of government “services”  — will further (and fatally) deter work, saving, capital investment, innovation, and entrepreneurship. (See, for example, this piece by Lawrence Kudlow.)

The economy, if we are lucky, will muddle along at a rate of growth that is barely positive. And that growth will be phony because it will be attributable to the expansion of the public sector (i.e., government and its wholly controlled subsidiaries). We will then have achieved the Left’s Nirvana: Europeanism.

God help us. It’s unlikely that anyone else will.

UPDATE: Arnold Kling makes a related and equally gloomy prediction:

Cato Unbound this month deals with a core issue. Peter Thiel writes,

I no longer believe that freedom and democracy are compatible…

As one fast-forwards to 2009, the prospects for a libertarian politics appear grim indeed. Exhibit A is a financial crisis caused by too much debt and leverage, facilitated by a government that insured against all sorts of moral hazards — and we know that the response to this crisis involves way more debt and leverage, and way more government. Those who have argued for free markets have been screaming into a hurricane. The events of recent months shatter any remaining hopes of politically minded libertarians. For those of us who are libertarian in 2009, our education culminates with the knowledge that the broader education of the body politic has become a fool’s errand.

I think that perhaps the best positive approach for libertarians right now is to support institutions that compete with government. That means charities, churches, charter schools, clubs, consumer information services, and other sources of public goods. I would count the traditional family as an institution that competes with government.

You are likely to see Democrats under President Obama launch assaults against all of the institutions of civil society. Already, the Washington DC school voucher program is under attack, as is the tax deduction for charitable contributions. As libertarians, our electoral voice is worth little. Our threat to exit is probably too costly to carry out. Promoting institutions that compete with government is the best strategy I can come up with.

I tend to agree that for libertarians the “voice” option is looking bleak. I prefer exit options. But by the same token, I do not want to move to New Hampshire (see Jason Sorens) or to a seastead (see Patri Friedman).

UPDATE 2: The Supreme Court will be of no help to us, if Ed Whelan and I are right about its likely direction. I focus on the long run; Whelan, on the near future. Sadly, I must agree with his assessment:

Don’t be fooled by the false claims that we have a conservative Supreme Court. The Court has a working majority of five living-constitutionalists. Four of them—Stevens, Souter, Ginsburg, and Breyer—consistently engage in liberal judicial activism, and a fifth, Kennedy, frequently does. As a result, the Court is markedly to the left of the American public on a broad range of issues. Indeed, in coming years, Souter’s replacement may well provide the fifth vote for

  • the imposition of a federal constitutional right to same-sex marriage;
  • stripping “under God” out of the Pledge of Allegiance and completely secularizing the public square;
  • the continued abolition of the death penalty on the installment plan;
  • selectively importing into the Court’s interpretation of the American Constitution the favored policies of Europe’s leftist elites;
  • further judicial micromanagement of the government’s war powers; and
  • the invention of a constitutional right to human cloning.

American citizens have various policy positions on all these issues, but everyone ought to agree that they are to be addressed and decided through the processes of representative government, not by judicial usurpation.

Whither the Supreme Court?

It seems that Justice Souter has yet to hire any clerks for the October 2009 term of the U.S. Supreme Court. Given that and Justice Ginsburg’s recent hint about an impending vacancy on the Court, it may not be premature to speculate on the Court’s direction should Souter resign.

It would be premature to guess about Obama’s replacement for Souter, except to venture that the person he picks will be of the Left. But, thanks to SCOTUSblog‘s analysis of Court rulings for the October 2008 term to date (updated through 04/30/09), it is possible to gauge the effect of Souter’s departure on the Court’s ideological balance. Compare Souter’s record with that of his “liberal” peers in disagreements with the Court’s more conservative members*:

In disagreement, non-unanimous cases
Souter Stevens Ginsburg Breyer Average
Roberts 72% 76% 72% 52% 68%
Scalia 69% 79% 69% 62% 70%
Kennedy 55% 66% 48% 41% 53%
Thomas 69% 79% 69% 62% 70%
Alito 79% 76% 72% 52% 70%
Average 69% 75% 66% 54%

Souter, as it turns out, is more “liberal” than Ginsburg and Breyer, as measured by the frequency of disagreements with the Court’s more conservative wing. (I admit surprise at finding Breyer close to the center with Kennedy — for the Court’s current term, at least. UPDATE: More accurately, Kennedy is left-of-center, along with Breyer. See UPDATE 2 at this post.)

So, if Souter retires at the end of the current term, his replacement is unlikely to shift the Court’s ideological balance — in the near future.  Over the longer run, however, the appointment of a relatively young, Left-wing justice would shift the Court’s balance, if that appointee outlasts two or three of the Court’s conservatives, who are then replaced by persons of the Left. (UPDATE: The long run may come sooner rather than later. See UPDATE 2 at this post.)

Furthermore, Obama probably will have the opportunity in his current term of office to appoint two more relatively young, Left-wing justices (replacements for Stevens and Ginsburg), who could outlast all of the Court’s conservatives. That would set the stage for the creation of a solidly Left-wing Court, if Democrats continue to hold the White House and Republicans are unable or unwilling to block the sitting president’s Court nominees.

Incidentally — but perhaps germanely — Republican presidents have fared poorly when it comes to picking justices. Of the 18 appointments by Republican presidents since 1953, seven proved to be closet “liberals” or centrists: Warren, Brennan, Blackmun, Stevens, Kennedy, O’Connor, and Souter. Democrats, on the other hand, have appointed five justices since 1953,  only one of whom (White) revealed himself as somewhat conservative.

As for the present Court, Republican presidents selected seven members; a Democrat (Clinton) chose the other two. Clinton’s picks have been reliably “liberal.” The GOP picks break down like this: four conservatives, one middle-of-the-roader, and two “liberals.” Et tu, Brute?

I take the difference between Republicans and Democrats to be symptomatic of the way the parties play the game of politics. Republicans are prone to misguided even-handedness. For Democrats, winning is everything.
__________
* What passes today for liberalism is so illiberal that I can no longer use the word without enclosing it in quotation marks, as a short way of saying “so-called liberal.” Many “liberals,” knowing that their appellation is tainted, now prefer “progressive,” though “regressive” is a better description of the “liberal-progressive” philosophy. Mike Rappaport of The Right Coast has more to say about the modern meaning of “liberal.”