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NOTES ON THE STATE OF LIBERTY IN AMERICAN LAW
As noted in Part II, I am using “liberty” to encompass the full spectrum of liberty rights, which the Founders captured in the phrase “life, liberty, and the pursuit of happiness.” This fragmentary addendum is a provocative gloss on that evocative phrase.
Liberty is nothing without life, of course. The right to life doesn’t extend to those who would take your life: a foreign enemy who is scheming to harm the United States or an armed thug who breaks into your home, for example.
The state may act to preserve the life, liberty, and happiness of its citizens by going to war against their enemies, even at the cost of the lives of American warriors and foreign bystanders. The alternative — stubborn, moralistic, libertarian “defensism”— is an invitation to aggressors.
The state may act to preserve the life, liberty, and happiness of its citizens by punishing those who prey on their fellows, with execution as an ultimate form of punishment. Whether or not capital punishment succeeds in deterring homicide (and I believe that it does), there must be a hierarchy of certain penalties for crime, and that hierarchy must culminate in the ultimate penalty if criminals and potential criminals are to believe that crime will be punished.
But, in America, the state isn’t supposed to hold a monopoly on righteous violence. Self-defense should be an absolute right when the police or armed forces of the state are not at hand, or when they fail in their protective duty. The right to self-defense implies the right to bear arms. It is no coincidence that the most rabid opponents of the right to bear arms are statist left-wingers whose politically correct agenda reveals scant regard for liberty. As a balanced commentary on the Second Amendment puts it:
[A] state facing a totally disarmed population is in a far better position, for good or ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being injured or killed.
Liberty, narrowly understood, is a set of negative rights — things that the state may not prevent individuals from doing unless and until they infringe on others’ life, liberty, or pursuit of happiness. What are those negative rights? The U.S. Constitution enumerates specific rights in Article I, Section 9; the First through Eighth Amendments; and Amendments Thirteen, Fourteen, Fifteen, Nineteen, Twenty-Three, Twenty-Four, and Twenty-Six. The rights thus enumerated are a combination of purely negative liberty rights (e.g., freedom of speech, freedom of the press) and procedural safeguards of liberty (e.g., warrants issuing upon probable cause, no excessive bail).
Life and law and law are too complex to permit unadulterated rights, of course. Consider liberty of speech: the right to express one’s views without prior restraint on the part of government (which does not mean immunity from criticism by private parties exercising their liberty of speech). Liberty of speech is fraught with limitations, most notably and recently the restrictions placed on the expression of one’s political views through so-called campaign-finance reform. There are many other examples of restricted rights, but the point I’m making is this: Operating under the aegis of the state, the branches of government can, and do, collude to convert absolute liberty rights into circumscribed ones. I’ll have more to say about the flight from the Framers’ vision of liberty in Part VI.
The Framers envisioned rights other than those enumerated in the original Constitution and the First through Eighth Amendments of the Bill of Rights. Thus we have the Ninth Amendment, which says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” What rights did the Framers have in mind when they crafted the Ninth Amendment? What were those “certain unalienable rights,” not included in “life, liberty and the pursuit of happiness” by the drafters of the Declaration of Independence? What more could there be, after liberty and its token (the right to vote) had been made universal by Amendments Thirteen, Fourteen, Fifteen, Nineteen, Twenty-Three, Twenty-Four, and Twenty-Six? It seems that Madison had nothing particular in mind:
It is clear from its text and from Madison’s statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.
A mere 174 years after the ratification of the Ninth Amendment, the U.S. Supreme Court found discovered such a right, in the majority opinion in Griswold v. Connecticut (1965), delivered by Justice William O. Douglas:
[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance….Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”…
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”…
We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
To which Justice Potter Stewart, dissenting, replied (same source):
[T]o say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion the Tenth, which this Court held “states but a truism that all is retained which has not been surrendered,” was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annual a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.
What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy “created by several fundamental constitutional guarantees.” With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.
At the oral argument in this case we were told that the Connecticut law does not “conform to current community standards.” But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases “agreeably to the Constitution and laws of the United States.” It is the essence of judicial…duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not. If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it. That is the constitutional way to take this law off the books.
Justice Hugo L. Black joined Justice Stewart’s dissent, adding (same source):
The Court talks about a constitutional “right of privacy” as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the “privacy” of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” But I think it belittles that Amendment to talk about it as though it protects nothing but “privacy.” To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.
One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term “right of privacy” as a comprehensive substitute for the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” “Privacy” is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used….For these reasons I get nowhere in this case by talk about a constitutional “right of privacy” as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court’s judgment and the reasons it gives for holding this Connecticut law unconstitutional….
While I completely subscribe to the holding of Marbury v. Madison…and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of “civilized standards of conduct.” Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination – a power which was specifically denied to federal courts by the convention that framed the Constitution….
[Justice Arthur Goldberg, who joined Douglas’s majority opinion] has adopted the recent discovery that the Ninth Amendment as well as the Due Process Clause can be used by this Court as authority to strike down all state legislation which this Court thinks violates “fundamental principles of liberty and justice,” or is contrary to the “traditions and [collective] conscience of our people.”….[O]ne would certainly have to look far beyond the language of the Ninth Amendment to find that the Framers vested in this Court any such awesome veto powers over lawmaking, either by the States or by the Congress. Nor does anything in the history of the Amendment offer any support for such a shocking doctrine….That Amendment was passed, not to broaden the powers of this Court or any other department of “the General Government,” but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication. If any broad, unlimited power to hold laws unconstitutional because they offend what this Court conceives to be the “[collective] conscience of our people” is vested in this Court by the Ninth Amendment, the Fourteenth Amendment, or any other provision of the Constitution, it was not given by the Framers, but rather has been bestowed on the Court by the Court. This fact is perhaps responsible for the peculiar phenomenon that for a period of a century and a half no serious suggestion was ever made that the Ninth Amendment, enacted to protect state powers against federal invasion, could be used as a weapon of federal power to prevent state legislatures from passing laws they consider appropriate to govern local affairs. Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention.
Having been cautioned against over reliance on the Ninth Amendment, the Court shifted ground, somewhat, in deciding for abortion (Roe v. Wade) and private, consensual, homosexual conduct between adults (Lawrence v. Texas) as a matter of due process. Here is Justice Anthony Kennedy, writing for the Court in Lawrence v. Texas:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
In other words, the majority found repugnant a Texas law against homosexual conduct, and so ruled that the law denied equal protection because it applied to the class of persons who practiced acts prohibited by that law. I suppose that if the Court found repugnant the Texas law that sets a 70 mile per hour speed limit on interstate highways in Texas, the Court would undo that law on the ground that it doesn’t afford equal protection to speeders.
You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because they seem to be in keeping with the essence of liberty, which is the right to be left alone. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need — as it has in done in many instances, some of which I will discuss in Part VI. The Court has gone down many a slippery slope, and I am especially concerned about the slippery-slope implications that its decisions on abortion might hold for euthanasia, as I will discuss in Part VIII.
It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:
Roper: So now you’d give the Devil benefit of law.
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that.
More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
(Thanks to The Delian’s Commonwealth for the dialogue, which I had remembered in essence but forgotten in detail.)
The Pursuit of Happiness
The “pursuit of happiness” gives a somewhat more positive cast to the concept of liberty. The pursuit of happiness is the advancement of one’s personal satisfaction, wherever that may lie, as long as that pursuit doesn’t trample the liberty of others. The pursuit of happiness necessarily includes the right to acquire and use property for the purpose of advancing one’s satisfaction.
The law seems bent on making happiness ever more elusive. Take smoking, for example. Governments now routinely prohibit smoking in their office buildings and in certain other places (e.g., bars, restaurants, and public parks). Such prohibitions usually are justified because of some research that links cancer to second-hand smoke. Given the uncertain state of the science on that score, it’s safe to say that smoking prohibitions serve mainly to satisfy the desire of non-smokers to avoid exposure to an irritant that makes their clothing smell bad. It’s also safe to say that the crusade against smoking is a form of reverse class warfare in which well-educated, well-paid, non-smokers are striving to dictate the mores of their social and economic “inferiors.” Instead of allowing the market to provide non-smoking bars and restaurants — which surely the market would do, given the relatively low incidence of smoking these days — do-gooders rush in to ban informed risk-taking (smoking) in the pursuit of happiness. Why not outlaw sky-diving? No, it’s a yuppie sport, can’t do that.
The anti-smoking crusade is a relatively benign manifestation of the modern reign of censoriousness. Sexual harassment laws and campus speech codes (many of them extant at government-run universities) are aimed directly at stifling the pursuit of happiness by limiting what we may say within the hearing or vision of the easily offended. For, who can deny that happiness is sometimes found in the enjoyment of humor and other forms of expression — which is sometimes racist, sexist, or just plain crude. And who is to say what forms of expression are out-of-bounds? Apparently not just the offended person, the offended person’s employer (who has a right to establish conditions of work), or the offended person’s friends. No, the majesty of the law must be invoked. Thus, saying the wrong thing in front of the wrong person in the workplace can get you fired, and it can get your employer in big trouble, too. Saying the wrong thing in front of the wrong person on campus can get you expelled.
In sum, it’s becoming ever more difficult to pursue happiness without violating the burgeoning “right” not to be offended, even if the offense does no harm. (If being offended is being harmed, then how can “we” allow James Carville and Chris Matthews to spew their idiocies over the “public” airwaves?) Happiness is becoming a positive right — a privilege — which allows those who are merely offended by the words and actions of others to control those words and actions through the law.
The great forest of American law — which imperfectly sheltered life, liberty, and the pursuit of happiness until the 1930s — has since been laid waste in the pursuit of various Devils, among them: self-defense (at home and abroad), personal responsibility (the main antidote of poverty, illiteracy, and crime), lower-class vices (smoking), (white) racism, (male) sexism, “offensive” (non-leftish) speech, “excessive” political spending and speech (especially by non-incumbents), all forms of pollution (except those necessary to finance a yuppie’s lifestyle and to propel his SUV), and life’s uncertainties in general. Now we are in the open, practically defenseless against the biggest Devil of all — the state — which dictates how much of life, liberty, and happiness we may enjoy.
I will have more to say about this in Part VI: “The Road Not Taken in American Law.”