The Southern Secession Reconsidered

A post by The Vociferous Reader, “Lincoln’s War,” prompts me to revisit the issue of secession. The main obstacle to serious consideration of secession is its association with the secession of the Southern States, which was motivated by the issue of slavery. The resulting Civil War had three principle outcomes:

reunification of the United States by force (which did not determine the legality of secession)

the end of slavery in the reunified nation

the persistent myth of the South as especially bigoted and oppressive, despite the North’s undeniable record of racial tension, discrimination, and de facto segregation.

What tends to be forgotten is the South’s pre-Civil War stance with respect to the central government. Southern resistance to the centralization of political power, and to the central government’s unconstitutional exercises of power, long pre-dated the Southern secession and was founded on a valid interpretation of the Constitution.

The Civil War, as a forcible act of reunification, is defensible only insofar as a main result was the end of slavery in the United States. On constitutional grounds, however, the Southern secession was valid and should not have been contested.

I have elsewhere laid out a general case for secession. Here it is, in part:

[S]ome of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that no person or people is obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States and the people thereof.

It was only by the grace of nine States that the Constitution took effect, thereby establishing the central government. Those nine States voluntarily created the central government and, at the same time, voluntarily granted certain, limited powers to it. The States understood that the central government would exercise its limited powers for the benefit of the States and their people. Every State subsequently admitted to the union has entered into the same contract with the central government.

But, as outlined above, the central government has breached its trust by exceeding the powers granted to it. In fact, the central government’s abuse of power has been so persistent and egregious that a reasonable remedy on the part of the States — individually or severally — is to declare the Constitution null and void. Each and every State, in other words, has the right to secede from the union and to withdraw from the central government its support and the support of the people.

My argument is buttressed by the pre-Civil War history of the United States, which includes the Whiskey Rebellion of the 1790s, the Kentucky and Virginia Resolutions of 1798 and 1799, the Nullification Crisis of 1828-33, and the Northern States’ Rights movement, which flourished before the Civil War and was sympathetic to the idea of Southern secession. Some of these events find their way into a review by David Gordon of Kevin R.C. Gutzman‘s The Politically Incorrect Guide to the Constitution.

Here are some relevant excerpts of Gordon’s review (page references omitted):

The principal thesis of the book is that the Jeffersonian, states’ rights understanding of America’s founding and the Constitution is correct. When the American colonies assembled in the Continental Congress and adopted the Declaration of Independence in 1776, they did not create a new nation, Abraham Lincoln to the contrary notwithstanding.

…The Declaration said that the colonies were now states, i.e., independent governments. “In the Declaration’s culminating fourth section, Congress declared the colonies to be ‘free and independent states’ and claimed for them the right to do everything that free countries could do.”

Nor did the Articles of Confederation change matters. Each state retained full sovereignty over all matters not “expressly delegated” to the United Sates….

As Gutzman makes clear, some delegates to the Philadelphia Convention certainly wished to change the nature of the American system. Instead of the usual split between nationalists and their opponents, however, Gutzman maintains that there were three parties in the convention: “The first was the monarchist party, the chief exemplar of which was New York’s Alexander Hamilton. The monarchists were intent on wiping the states from the map and substituting one unitary government for the entire continent … The second party consisted of nationalists, people who — without ever avowing admiration for the monarchical form — wanted to push centralization as far as could reasonably be hoped … Finally, there was a cohort in the Convention of members insistent on proposing a reinforcement of the central government while maintaining the primary place of the states in the American polity — a truly federal, rather than national government.”

Gutzman rightly points out that neither of the two nationalist parties got its way. Madison, the “Father of the Constitution”, wanted the federal Congress to have the power to veto state legislation, but this proposal was rejected. So far, our author has given a standard account, but now comes his key interpretive move.

He maintains that crucial to understanding the meaning of the Constitution were the intentions of the delegates to the ratifying conventions. These delegates, after all, were the people whose votes established the Constitution as legally binding. Gutzman concentrates on the Virginia convention, and he places great stress on one point.

The Virginia delegates looked on the new Constitution with great skepticism, fearing that it would become a tool for the federal government to crush the states. To placate opponents such as Patrick Henry, the leaders of the pro-ratification forces, who included Governor Edmund Randolph, the proposer of the nationalist Virginia Plan at Philadelphia, had to make a concession. They had to agree that the powers of the new Congress were limited to those “expressly delegated” in the Constitution. The delegates repudiated in advance any move by the new authorities to expand their powers beyond this. Further, they wrote into their ratification statement the right to withdraw from the new government, if it exceeded its proper powers.

Gutzman contends that because this understanding was part of Virginia’s instrument of ratification, no stronger central government can claim Virginia’s authorization. And since it would be senseless to think that the Constitution gives the federal government more power over some states than others, the Virginia restrictions apply to all the states.

This is the Jeffersonian view of the Constitution. Gutzman’s great contribution is to show that the Virginia and Kentucky Resolutions of 1798 and 1799, the key statements of the Jeffersonian position, restated the understanding of the Virginia ratifying convention. Contrary to the Federalist opponents of the Resolutions, Jefferson and Madison did not act as innovators in 1798; and their position cannot be dismissed as merely one of several competing interpretations. It was firmly based on the legally valid Virginia ratification instrument.

Gutzman summarizes his main contention in this way:

“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But … they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders(the nationalist and monarchist wings) wanted to change that understanding.”

However sound the Jeffersonian understanding of the Constitution, it of course has not prevailed in subsequent American history. Gutzman assigns federal judges a large share of the responsibility for the transformation of the original understanding; and one judge in particular arouses his critical scorn. The judge in question is the foremost of all federalist judges, Chief Justice John Marshall….

For Gutzman, Marshall’s chief sin is … his repudiation of the Jeffersonian understanding of the limits of federal power. In McCulloch v Maryland, Marshall “wrote that while the Articles of Confederation had specified that Congress had only the powers it was ‘expressly delegated,’ the Constitution included no such language, so no such principle applied to it. This was an extraordinary argument, given that Marshall himself and other Federalists … had assured their ratification colleagues that this very principle of limited federal power … was implicit in the unamended Constitution even before the Tenth Amendment was adopted.” [It was, moreover, clear from the construction of Article I, Section 8, and the discussion of that portion of the Constitution in the The Federalist Papers (e.g., No. 45): ED.]

Given his Jeffersonian views, it comes as no surprise that Gutzman thinks the Southern states acted fully within their rights when they seceded from the Union in 1861. “The Federalists always insisted during the ratification debates — knowing that they had to win support for the Constitution — that the states were individual parties to a federal compact. Spelling out the logic of the compact, three states — Virginia, Maryland, and Rhode Island — explicitly reserved (in the act of ratifying the Constitution) their right to secede from the Union.”

Gutzman has made a very strong case for his Jeffersonian understanding of the Constitution. A critic might challenge him on the grounds that we need not today care about how the Constitution was understood by its eighteenth century ratifiers. But Gutzman could in response say that this is what was legally enacted; those who favor other views of government should not attempt to attain their goals through misreadings and distortion of the constitutional text.

Just so. There is no point in memorializing an agreement unless that agreement is meant to stand for all time, or until the parties to it agree to revise or revoke it. Legislators, executives, and judges are not parties to the Constitution; they are its sworn caretakers. And they have long failed in their duty.

As for Lincoln, he did his duty as he saw it — which was to preserve the Union. It is hard (for me) to fault the man who ended his first inaugural address with this:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union when again touched, as surely they will be, by the better angels of our nature.

P.S. The foregoing makes a legal case for secession. A different case, which I make here, is that secession is valid because the Constitution did not bind the whole of “the people” when it was ratified, and could not have bound future generations.

* * *

See “The Constitution: Myths and Realities“.

In Defense of Marriage

This post joins some old and new observations about same-sex “marriage.” I not only repudiate the travesty of homosexual “marriage” but also those so-called libertarians who would (unwittingly) harm the cause of liberty by their insistence on a “right” to same-sex “marriage.” In the end, I remind the reader that there is more to liberty than the mindless parroting of phrases like “fairness,” “justice,” and “equal protection of the laws.”

SAME-SEX “MARRIAGE” AS A LITMUS TEST

It is my firm impression that most self-described libertarians — and “liberals,” it should go without saying — view same-sex “marriage” as a right. “Libertarian” bloggers X and Y are typical of the breed.[1]

Blogger X, a professed homosexual, states flatly that “I’m being discriminated against, and I want it to stop.”

Blogger Y, a known heterosexual, takes a complementary tack. For example, he calls Ron Paul’s support of the Defense of Marriage Act[2] (DOMA) “state-sponsored bigotry.” Actually, Paul was criticizing the Obama administration for failing to support DOMA because the act

used Congress’ constitutional authority to define what other states have to recognize under the Full Faith and Credit Clause, to ensure that no state would be forced to recognize a same sex marriage license issued in another state.

Paul adds:

I will stand … against Unconstitutional federal power grabs, and will fight to protect each state’s right not to be forced to recognize a same sex marriage against the will of its people.

Y seems to view Paul’s defense of States’ rights as wrong — in this instance, at least — because the definition of marriage as the union of one man and one woman denies marriage to homosexual couples. Further, that denial seems — in Y‘s view — to arise from bigotry. Perhaps it does, in Paul’s case, but I am here to defend marriage, not a crotchety Texan (see this, this, and this, for example).

SAME-SEX “MARRIAGE” IS A PSEUDO-LIBERTARIAN CAUSE

Blogger Y‘s position is a manifestation of the kind of rationalistic, political correctness that is common among left (psuedo)-libertarians. Will Wilkinson, for example, suggests that

most PC episodes mocked and derided by the right are not state impositions. They are generally episodes of the voluntary social enforcement of relatively newly established moral/cultural norms.

Wilkinson grossly simplifies the complex dynamics of PCness. His so-called “newly established … norms” are, in fact, norms that have been embraced by insular élites (e.g., academics and think-tank denizens like Wilksinson) and then foisted upon “the masses” by the élites in charge of government and government-controlled institutions (e.g., tax-funded universities). Thus it is no surprise that proposals to allow same-sex “marriage” fare poorly when they are submitted to voters.

Pseudo-libertarianism of the kind evidenced by Wilkinson is no better than any other kind of rationalism. It simply posits a sterile, abstract standard of conduct — one that has nothing to do with the workaday world of humanity — and finds wanting everyone but those who pay lip-service to that standard of conduct.

That is not libertarianism. It is sophomoric dream-spinning.

Where is libertarianism to be found? In conservatism, of all places, because it is a reality-based political philosophy.

But what does conservatism have to do with libertarianism? I have in various posts essayed an answer to that question (here, here, here, and here, for example), but now I turn the floor over to John Kekes, who toward the end of “What Is Conservatism?” says this:

The traditionalism of conservatives excludes both the view that political arrangements that foster individual autonomy should take precedence over those that foster social authority and the reverse view that favours arrangements that promote social authority at the expense of individual autonomy. Traditionalists acknowledge the importance of both autonomy and authority, but they regard them as inseparable, interdependent, and equally necessary. The legitimate claims of both may be satisfied by the participation of individuals in the various traditions of their society. Good political arrangements protect these traditions and the freedom to participate in them by limiting the government’s authority to interfere with either.

Therein lies true libertarianism — true because it is attainable. Left-libertarians believe, foolishly, that liberty is to be found in the rejection of social norms. Liberty would be the first victim of the brave new disorder that they wish for.

If there is a truly libertarian case for same-sex “marriage,” it can be made only by invoking the possibility of voluntary social acceptance of same-sex couples who bond in a manner analogous to the bonding of heterosexual couples. But analogy is not identity, just as reliance on the edicts of the state is not a proper libertarian approach to social change.

OPPOSITION TO SAME-SEX MARRIAGE IS NOT INHERENTLY BIGOTED

Many (if not most) persons who oppose same-sex “marriage” are animated not by an animus toward homosexuals but by respect for the time-honored status of marriage — in the Western tradition — as a monogamous, heterosexual union. Is it bigotry to defend a traditional institution from redefinition at the hands of the state? I think not. The state’s proper role is to protect citizens and their voluntary institutions, not to undermine or usurp those institutions. Therefore, if the state is going to involve itself in voluntary institutions, it ought to do so only for the purpose of ensuring that those institutions are not reshaped involuntarily.

The only bigotry that I see is the bigotry of individuals like X and Y, who denigrate those who would preserve the traditional character of marriage. I remind X, Y, and others who cry “discrimination” and “bigotry” that marriage — in its Judeo-Christian roots — is a social institution that was established for the purpose of solemnizing and legitimating the union of man and woman — not for the purpose of causing harm to anyone.

As for the opponents of same-sex “marriage,” I do not believe that a general charge of bigotry on their part can stand scrutiny. I have no doubt that some defenders of traditional marriage defend it solely or mainly because they despise homosexuals, their “differentness,” and their sexual practices. But such exceptions do not change the fact that marriage is not an institution founded on bigotry.

TRADITIONAL MARRIAGE IS A LIBERTARIAN INSTITUTION

Moreover, there is a compelling, libertarian reason to preserve the time-honored status of marriage as the union of man and woman. It is an institution whose preservation is vital to civil society, upon which liberty depends:

[I]t 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 — in the minarchistic view — 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. Moreover, some minarchists aver that government ought to tolerate a broad range of accepted behaviors across the various institutions of civil society, as long as government also protects the negative rights of association and exit: the right to associate with persons of one’s choosing, and the right to live and work where one prefers.

Marriage — despite its imperfections and the state’s involvement (e.g., licensing, separation proceedings, divorce decrees) — remains a bulwark of civil society, or of the remnants of civil society that have survived usurpation and negation by the state. Therefore, the proponents of state-imposed same-sex “marriage” bear the burden of proving that the expansion of marriage to include homosexual partnerships will redound to the benefit of civil society. Saying that opposition to same-sex marriage amounts to bigotry is no kind of proof.

This leads me to ask whether (1) state-imposed homosexual “marriage” would be deleterious to civil society in the long run, and (2) if marriage loses its traditional definition, any institution of civil society is immune from the depradations of the state.

On the question of the long-run effects of state-imposed homosexual “marriage,” I turn to Jennifer Roback Morse:

Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state…..

My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage….

The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can’’t raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm….

No libertarian would claim that the presumption of economic laissez-faire means that the government can ignore people who violate the norms of property rights, contracts, and fair exchange. Apart from the occasional anarcho-capitalist, all libertarians agree that enforcing these rules is one of the most basic functions of government. With these standards for economic behavior in place, individuals can create wealth and pursue their own interests with little or no additional assistance from the state. Likewise, formal and informal standards and sanctions create the context in which couples can create marriage with minimal assistance from the state….

Some libertarians seem to believe that marriage is a special case of free association of individuals. I say the details of this particular form of free association are so distinctive as to make marriage a unique social institution that deserves to be defended on its own terms and not as a special case of something else.

One side in this dispute is mistaken. There is enormous room for debate, but there ultimately is no room for compromise…. We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes….

Being free does not demand that everyone act impulsively rather than deliberately. Libertarian freedom is the modest demand to be left alone by the coercive apparatus of the government. Economic liberty, and libertarian freedom more broadly, is certainly consistent with living with a great many informal social and cultural constraints….

We now live in an intellectual, social, and legal environment in which the laissez-faire idea has been mechanically applied to sexual conduct and married life. But Rousseau-style state-of-nature couplings are inconsistent with a libertarian society of minimal government. In real, actually occurring societies, noncommittal sexual activity results in mothers and children who require massive expenditures and interventions by a powerful government….

When … Friedrich Hayek championed the concept of spontaneous order, he helped people see that explicitly planned orders do not exhaust the types of social orders that emerge from purposeful human behavior. The opposite of a centrally planned economy is not completely unplanned chaos, but rather a spontaneous order that emerges from thousands of private plans interacting with each according to a set of reasonably transparent legal rules and social norms.

Likewise, the opposite of government controlling every detail of every single family’’s life is not a world in which everyone acts according to emotional impulses. The opposite is an order made up of thousands of people controlling themselves for the greater good of the little society of their family and the wider society at large….

Libertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts. Similarly, a free society needs a culture that supports and sustains marriage as the normative institution for the begetting, bearing, and rearing of children. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows. Likewise, a society full of people who treat sex as a purely recreational activity, a child as a consumer good and marriage as a glorified roommate relationship will not be able to resist the pressures for a vast social assistance state. The state will irresistibly be drawn into parental quarrels and into providing a variety of services for the well-being of the children….

The libertarian preference for nongovernmental provision of care for dependents is based upon the realization that people take better care of those they know and love than of complete strangers. It is no secret that people take better care of their own stuff than of other people’s. Economists conclude that private property will produce better results than collectivization schemes. But a libertarian preference for stable married-couple families is built upon more than a simple analogy with private property. The ordinary rhythm of the family creates a cycle of dependence and independence that any sensible social order ought to harness rather than resist.

We are all born as helpless infants, in need of constant care. But we are not born alone. If we are lucky enough to be born into a family that includes an adult married couple, they sustain us through our years of dependence. They do not get paid for the work they do: They do it because they love us. Their love for us keeps them motivated to carry on even when we are undeserving, ungrateful, snot-nosed brats. Their love for each other keeps them working together as a team with whatever division of labor works for them.

As we become old enough to be independent, we become attracted to other people. Our bodies practically scream at us to reproduce and do for our children what our parents did for us. In the meantime, our parents are growing older. When we are at the peak of our strength, stamina, and earning power, we make provision to help those who helped us in our youth.

But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it….

Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law….

The advocates of the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people have used the language of choice and individual rights to advance their cause. This rhetoric has a powerful hold over the American mind. It is doubtful that the deconstruction of the family could have proceeded as far as it has without the use of this language of personal freedom.

But this rhetoric is deceptive. It is simply not possible to have a minimum government in a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. But destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms.

It is high time libertarians object when their rhetoric is hijacked by the advocates of big government. Fairness and freedom do not demand sexual and parental license. Minimum-government libertarianism needs a robust set of social institutions. If marriage isn’t a necessary social institution, then nothing is. And if there are no necessary social institutions, then the individual truly will be left to face the state alone. A free society needs marriage. (“Marriage and the limits of contract: A libertarian case,” Policy Review, No. 130)

It is clear that a free society needs traditional, heterosexual marriage, which — as Morse explains — is a primary civilizing force. As if in answer to that truth, the proponents of same-sex “marriage” aver that its recognition by the state will not undermine the societal benefits of traditional marriage. They aver, rather, that it will extend those benefits to encompass those homosexuals who choose “marriage,” and their biological or adopted children.

SAME-SEX “MARRIAGE” IS A BLOW TO LIBERTY

Is there really a “win-win” argument for same-sex “marriage”? The answer, in a word, is “no.” The recognition of homosexual “marriage” by the state — though innocuous to many, and an article of faith among most libertarians and liberals — is another step down the slippery slope of societal disintegration. The disintegration began in earnest in the 1930s, when Americans began to place their trust in chimerical, one-size-fits-all “solutions” offered by power-hungry, economically illiterate politicians and their “intellectual” enablers and apologists. In this instance, the state will recognize homosexual “marriage,” then bestow equal benefits on homosexual “partners,” and then require private entities (businesses, churches, etc.) to grant equal benefits to homosexual “partnerships.” Individuals and businesses who demur will be brought to heel through the use of affirmative action and hate-crime legislation to penalize those who dare to speak against homosexual “marriage,” the privileges that flow from it, and the economic damage wrought by those privileges.

It should be evident to anyone who has watched American politics that even-handedness is not a matter of observing constitutional limits on government’s reach, regardless of who asks for an exception; it is, rather, a matter of expanding the privileges bestowed by government so that no one is excluded. It follows that the recognition and punitive enforcement of same-sex “marriage” would be followed by the recognition and bestowal of benefits on other arrangements, including transient “partnerships” of convenience. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go.

Almost six years ago, I constructed following parable (here), which builds on a post by Maggie Gallagher (part of a series at The Volokh Conspiracy on the subject of same-sex marriage):

Imagine a society that depends on the camel (the family, in this analogy) for transportation across a dangerous desert and into an oasis of civility. A camel that is operated by a man and a woman — joined contractually to do their best to steer the camel from danger — is most likely to arrive at its destination safely because the man and woman have complementary skills, and because they (and their offspring, to break the analogy for a moment) are bonded in an irreplicable biological symbiosis. A camel that is operated by either a man or a woman alone is next most likely to arrive at its destination safely because a sole operator, knowing that he or she lacks certain skills, is at least likely to try to compensate for that lack. A camel that is operated by two persons of the same sex is least likely to arrive at its destination safely because: (1) the operators’ bonding can never be as complete as that of a man-woman team and (2) the operators deliberately choose to omit half the skills required for the job.

Those differences might have only a marginal effect on the overall success of camel-driving operations if the state were not involved in licensing and supporting camel drivers. But the state is involved in licensing and supporting camel drivers, and it has done poorly by the camel in the process. The state began many years ago to encourage solo camel driving by enabling man-woman teams to break their contracts at will instead of trying to work out their differences. (The lesson: When the state sends signals about private arrangements, private arrangements tend to align themselves with the signals being sent by the state.) The state later began to encourage yet more solo camel driving by subsidizing women for driving solo (for raising children out of wedlock, that is) and fostering the dereliction of camel-driving duty in the name of “equality” (as if camel driving were a lesser occupation than, say, camel trading). Now the state is beginning to encourage the formation of man-man and woman-woman camel-driving teams. Given the state’s record in such matters, the predictable outcomes of that development are these:

An increasing proportion of camels will be driven by same-sex teams, thus decreasing the likelihood that camels will arrive safely at the oasis of civility.

A decreasing proportion of men and women will feel the need to form opposite-sex camel-driving teams, as they see that the state (having usurped society’s role in legitimating and supporting camel driving teams) values such teams less and less, thus even further decreasing the likelihood that camels will arrive safely at the oasis of civility.

Given the signals being sent by the state, the rate of formation of traditional, heterosexual marriages will continue to decline. (According to the Census Bureau, the percentage of adult males who are married dropped steadily from 71.1 percent in the 1960 census to 58.6 percent in the 2000 census; for females, the percentage dropped from 67.4 to 54.6. (The latest available figures, for 2009, show no significant change since 2000.) About half of each drop is explained by a rise in the percentage of adults who never marry, the other half by a rise in the percentage of divorced adults. Those statistics are what one should expect when the state signals — as it began to do increasingly after 1960 — that traditional marriage is no special thing by making it easier for couples to divorce, by subsidizing single mothers, and by encouraging women to work outside the home.

The well-known effects of such policies include higher rates of crime and lower levels of educational and economic achievement. (See this and this, for example.) Same-sex marriage would multiply these effects for the sake of mollifying a small minority of the populace.

“EQUAL PROTECTION OF THE LAWS” DOES NOT DICTATE SAME-SEX “MARRIAGE”

When all else fails, special-pleaders claim that to deprive a particular class of persons of a particular right is to deprive them of the “equal protection of the laws,” as guaranteed by the Fourteenth Amendment. The current, perverted interpretation of Equal Protection — as applied by the proponents of same-sex “marriage” — leads to this: Despite the fact that marriage is good for society and should not be undermined, Equal Protection (in the perverse view) requires that marriage be undermined by redefining it. The law, in other words, cannot discriminate among individuals if there are objections by (or on the part of) those who are discriminated against. The reasonableness of the discrimination is of no account. Thus, in the not-so-far-fetched-extreme, criminals may not be discriminated against by putting them into prisons, but must enjoy the same amenities as law-abiding citizens.

Consider the infamous Proposition 8 case, Perry v. Schwarzenegger, which was decided last year by U.S. District Judge Vaughn Walker (who has since retired and admitted his special interest in the case, as a homosexual in a “committed” relationship). Judge Walker addresses equal protection thusly:

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”…

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

The circularity of Judge Walker’s reasoning with respect to equal protection begins much earlier in his decision, where he writes that

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

But the right to marry, historically, has been the right to choose a spouse of the opposite sex, not merely to choose a spouse. Judge Walker even acknowledges that fact, inadvertently, when he puts aside “relative gender composition,” as if it were a mere trifle and not central to a social tradition that dates back millennia and should not be swept aside casually by a judge because he finds it “irrational,” on the basis of spurious social science. Walker then says that “gender is not relevant,” thus circularly assuming that which is to be proved. As if in support of that assertion he asserts, laughably, that “gender restrictions … were never part of the historical core of the institution of marriage.”

In sum, Judge Walker approaches the constitutional matter of equal protection by assuming that gays have the right to marry. Given that assumption, it is easy to assert that Proposition 8 amounts to a denial of equal protection for gays who seek to marry.

THE STATE SHOULD PROTECT MARRIAGE, NOT DESTROY IT

Although it is true that heterosexual unions have their problems, those problems have been made worse by the intercession of the state. And if the state legitimates same-sex “marriage” civil society will suffer a devastating injury.

Near-sighted, special-pleading proponents of same-sex “marriage,” even if faced with its anti-libertarian ramifications, will say that it is only “fair” to legalize it, and discriminatory or bigoted to deny it. These are the proper response to such playground taunts:

Marriage was neither created nor sustained for negative reasons. The preservation of a time-honored, beneficial, voluntary, social institution is no more discriminatory or bigoted than the preservation of, say, an honorary society that is open only to persons who excel in particular ways.

The legalization of homosexual “marriage” is unfair to the vast majority of Americans whose well-being depends on the proper functioning of traditional marriage, which is a bulwark of civil society.

Therefore, given that the state is deeply and irretrievably involved in marriage, I reject the unrealistic libertarian nostrum that the state ought not to have anything to do with marriage. The reality of the state’s continuing involvement with marriage leads me to embrace the consequentialist position that the state ought to preserve it by refusing to change its time-honored character as the union of one man and one woman.

The alternative is to advance further down the slippery slope toward societal disintegration and into the morass of ills which accompany that disintegration. (We have seen enough societal disintegration and costly consequences since the advent of the welfare state to know that the two go hand in hand.)

Faced with a choice between libertarian shibboleth and libertarian substance, I have chosen substance. I now say: Ban homosexual marriage and avoid another step down the slippery slope toward incivility and bigger government.

__________
1. I enclose “libertarians” in quotation marks because many (most?) self-described libertarians espouse policies that are, in fact, anti-libertarian. The legalization of same-sex “marriage” is one such policy, as I explain in this post; abortion is another salient one; others include a weak national defense, borders that are open to prospective supporters and beneficiaries of the welfare state, reflexive softness toward criminals, and a willingness to sacrifice the property rights of others to prove their own bona fides in matters of race. For more, see these posts:
On Liberty
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism

Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
More Pseudo-Libertarianism
More about Conservative Governance
The Meaning of Liberty
Positive Liberty vs. Liberty
On Self-Ownership and Desert

2. DOMA, as explained here, seems to have two legal effects:

DOMA Section 2 … relieves states of a constitutional obligation to enforce judicial custody, alimony or other orders made in other states that involve recognition of same-sex marriages…. It is unclear … whether states already had the power to refuse recognition in these cases before the enactment of DOMA, and whether the U.S. Constitution allows Congress to modify such state authority.

DOMA’s Section 3 prevents the federal government from recognizing the validity of same-sex marriages….

Later:

Section 2 of DOMA explicitly addresses the constitutional requirement expressed in the Full Faith and Credit Clause in Article IV Section 1 of the United States Constitution, quoting its language directly. That clause establishes that the states have certain reciprocal obligations to one another, specifically to recognize each other’s “public Acts, Records, and judicial Proceedings.” That same section of the Constitution gives Congress the authority to legislate on the question of those obligations. Section 2 of DOMA excludes same-sex marriages from the state “acts” that any other state needs to recognize.

[Regarding] Section 3 of DOMA…. On February 23, 2011, Attorney General Eric Holder and President Obama announced their conclusion that “a more heightened standard of scrutiny” is necessary for sexuality-based classifications and consequently… DOMA Section 3 is unconstitutional.

In other words, a constitutional act — which legitimately allows the citizens of the various States to define marriage for themselves — is cast aside precisely because the citizens of some States might reject same-sex “marriage.” Obama and Holder, in other words, have taken it upon themselves to grant same-sex “marriage” the same status as traditional marriage. Their “reasoning,” I suspect, flows from the circular application of the “equal protection” clause of the Fourteenth Amendment that I discuss here.

Lawyerly Obtuseness

In the matter of Obamacare’s “individual mandate,” Orin Kerr and a three-judge panel of the Fourth Circuit cannot grasp the activity/inactivity distinction. There should be no mystery about it:

The Constitution’s Commerce Clause gives Congress the power to regulate interstate commerce — activities that actually involve the transmission of products and services across State lines. The Commerce Clause does not give Congress the power to force participation in interstate commerce.

Congress therefore lacks the power to regulate the absence of interstate commerce, including decisions by individuals and businesses not to involve themselves in certain aspects of interstate commmerce.

The Necessary and Proper Clause merely allows Congress to make laws that enable it to execute its enumerated powers. The clause is not a mandate for Congress to go beyond those powers. Therefore, the clause cannot properly be invoked as an authority for the individual mandate.

End of discussion. Next case.

P.S. Randy Barnett offers a different view of the proceedings, while David Kopel corroborates my view of the Necessary and Proper Clause.

The Killing of bin Laden and His Ilk

The following is from a post by Fernando Teson, a philosopher-lawyer:

[T]he extrajudicial killing of a named person by a government for a public purpose, can be morally justified outside the battlefield onlyif the following four conditions are met:

1) it is necessary to avert deaths of innocents;

2) the government has a just cause (this condition is different from the first one);

3) the target is culpable, a true villain; and

4) capturing the villain is not possible.

I think that the three first conditions were met in the case of bin Laden, but I’m unsure about the fourth. We don’t know what happened here but even someone as wretched as bin Laden has to be given the chance to surrender. I’m inclined to think that this last requirement does not stem from any fundamental right that bin Laden has, but rather from what our democracy should be.

Why is killing permissible only if capture is not possible? Bin Laden and others of his ilk were and are villains, beyond doubt. They should be captured instead of being killed outright only if these conditions are met:

Capture does not lead to a trial in a civilian court, with its opportunities for grandstanding and a betrayal of justice — acquittal or a sentence less than death because a terrorist is treated as if he were owed the rights of an American, whose rights he would strip if he could.

Capture is for the sole purpose of attempting to extract information that might be useful in tracking down other terrorists and/or thwarting terror plots.

What “our democracy should be” is ruthless in the pursuit of its enemies. They will never respect us, but they should fear us.

What about U.S. citizens who have joined forces with foreign terrorists? Teson objects to “the declared intention of the Obama administration to kill U.S. citizen Anwar al-Awlaki.” The link in the preceding quotation leads to a post by Glenn Greewald, who cannot be said to sympathetic to the defense of Americans from their enemies (see this and this). Greenwald does make a good point:

[T]he reality is that the [Obama] administration has retained and, in some cases, built upon the core Bush/Cheney approach to civil liberties and Terrorism. As Al Gore asked in his superb 2006 speech protesting Bush’s “War on the Constitution”:

Can it be true that any president really has such powers under our Constitution?

If the answer is yes, then under the theory by which these acts are committed, are there any acts that can on their face be prohibited?

If the president has the inherent authority to eavesdrop on American citizens without a warrant, imprison American citizens on his own declaration, kidnap and torture, then what can’t he do?

There are good reasons to curb governmental acts that are not authorized by or contemplated in the Constitution. Slippery slopes do exist, as is all too evident in the state of the union. But where were Greenwald, Gore, and all other Constitution-invoking “liberals” — past and present — when it came to such blatantly unconstitutional acts as the passage of Social Security, Obamacare, and the multitude of other extra-constitutional homages to tyranny? Their hypocrisy precedes them.

Having said that, it seems to me that the constitutional niceties could be observed as follows: Try al-Awlaki (and others like him) for treason; secure a death sentence; and enforce the sentence with a “hit.”

Transnationalism and National Defense

Ed Whelan of Bench Memos explains:

“Transnationalism” challenges the traditional American understanding that … “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.” Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.

Transnationalism is a manifestation of an attitude that seems to prevail among leftists and extreme libertarians. Such types advocate a kind of international legal order in which acts of aggression against Americans cannot be answered or avenged except through the observance of legal niceties. As if there are international tribunals that would dispense even-handed judgments where the U.S. is concerned. As if our enemies could be counted on to observe international laws against aggression.

This benighted attitude is found in this post by Don Boudreaux, an otherwise sensible libertarian:

One of the great tenets of liberalism — the true sort of liberalism, not the dirigiste ignorance that today, in English-speaking countries, flatters itself unjustifiably with that term — is that no human being is less worthy just because he or she is outside of a particular group. Any randomly chosen stranger from Cairo or Cancun has as much claim on my sympathies and my respect and my regard as does any randomly chosen person from Charlottesville or Chicago.

The problem with such sentiments — correct as they may be — is the implication that we have nothing more to fear from people of foreign lands than we have to fear from our own friends and neighbors. Yet, as Boudreaux himself acknowledges,

[t]he liberal is fully aware that such sentiments [about “us” being different from “them”] are rooted in humans’ evolved psychology, and so are not easily cast off. But the liberal does his or her best to rise above those atavistic sentiments,

Yes, the liberal does strive to rise above such sentiments, but not everyone else makes the same effort, as Boudreaux admits. Therein lies the problem.

Transnationalists equate sovereignty with jingoism, protectionism, militarism, and other deplorable “isms.” Transnationalists ignore or deny the hard reality that Americans and their legitimate overseas interests are threatened by nationalistic rivals and anti-Western fanatics.

In the real world of powerful rivals and determined, resourceful fanatics, the benefits afforded Americans by our (somewhat eroded) constitutional contract — most notably the enjoyment of civil liberties, the blessings of free markets and free trade, and the protections of a common defense — are inseparable from and dependent upon the sovereign power of the United States. To cede that sovereignty for the sake of transnationalism is to risk the complete loss of the benefits promised by the Constitution.

It is for those reasons that I reject and despise leftists and extreme libertarians who have used the recent, justified, and laudable execution of Osama bin Laden as an occasion for spewing their venom. Noam Chomsky exemplifies the left’s moral relativism:

We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic.

Jeffrey Tucker exemplifies loony anarcho-capitalism:

I have some vague sense that many people are opposed to capital punishment, and for good reason, and especially when there is no trial and conviction, and yet we are expected uncritically to celebrate the death of Bin Laden at the hands of the U.S. state.

What Chomsky, Tucker, and their ilk have in common is their status as cosseted intellectuals who benefit from the existence of the very state that they profess to abhor. I have little doubt of the fate that would befall them should they venture into the wrong part of the world without a retinue of SEALs to protect them from what passes for “justice” among the savages.

Voluntary Taxation

Will Wilkinson, writing at The Economist, quotes Ayn Rand and begs to differ with her:

Ayn Rand’s position on government finance is unusual, to say the least. Rand was not an anarchist and believed in the possibility of a legitimate state, but did not believe in taxation. This left her in the odd and almost certainly untenable position of advocating a minimal state financed voluntarily. In her essay “Government Financing in a Free Society”, Rand wrote:

In a fully free society, taxation—or, to be exact, payment for governmental services—would be voluntary. Since the proper services of a government—the police, the armed forces, the law courts—are demonstrably needed by individual citizens and affect their interests directly, the citizens would (and should) be willing to pay for such services, as they pay for insurance.

This is faintly ridiculous. From one side, the libertarian anarchist will agree that people are willing to pay for these services, but that a government monopoly in their provision will lead only to inefficiency and abuse. From the other side, the liberal statist will defend the government provision of the public goods Rand mentions, but will quite rightly argue that Rand seems not to grasp perhaps the main reason government coercion is needed, especially if one believes, as Rand does, that individuals ought to act in their rational self-interest.

It’s true that we each benefit from the availability of genuinely public goods, but we benefit most if we are able to enjoy them without paying for them. A rationally self-interested individual will not voluntarily pay for public goods if she believes others will pay and she can get a free ride. But if we’re all rationally self-interested, and we know we’re all rationally self-interested, we know everyone else will also try to get a free ride, in which case it is doubly irrational to voluntarily pitch in. (from “Ayn Rand on Tax Day,” free registration required)

Wilkinson’s analysis is more than faintly wrong. A rationally self-interested individual will voluntarily pay for something if his expected benefit is worth (to him) the price he pays. The fact that a purchase might yield uncompensated benefits to third parties (i.e., positive externalities) is beside the point. Individuals do many things with their money that benefit others, without expecting to be repaid by those others. Individuals also do things that benefit others, in more than the ordinary way of voluntary exchange — sometimes for money, sometimes not, and sometimes at the risk of life and limb.

In addition to the obvious but signifcant case of philanthropy, there are subtle things like building an elegant house with beautifully landscaped grounds. Clusters of such houses on upscale streets yield satisfaction not only to their owners but also to drivers, joggers, and strollers who pass through the neighborhood — often with the main purpose of enjoying the elegance and beauty that surrounds them.

A similar case in point is the practice observed in many neighborhoods of creating elaborate displays of Christmas lights. Such displays not only please the homeowners who create them (or pay someone to create them) but also the flocks of sightseers who are drawn to such displays. Homeowners (for the most part) do this without compensation from sightseers. (Some homeowners in a less-affluent neighborhood in Austin, which is known for its over-the-top lighting concoctions, have been known to invite voluntary donations to help defray the cost of their displays.)

Finally, on this point, there are not-so-subtle examples of doing good for others as a habit and even a way of life. Many persons devote many hours a week to voluntary work in schools, hospitals, and the like. Then there are firefighters, police officers, and a goodly fraction of the members of the armed forces who perform jobs that put them in harm’s way, and do so not only for the money they earn but often because they feel a duty to make their towns, cities, and nation safer for the inhabitants thereof.

In any event, a rationally self-interested person who values national defense or the justice system would be a good candidate for making voluntary contributions to support those kinds of governmental functions. It would be a simple thing for influential and very wealthy individuals and major corporations to parlay their self-interest into the creation of organizations that raise money from like-minded individuals and corporations. Imagine a version of the American Heart Association called the American Defense Association; imagine a version of the Junior League called the Justice League. If anything, it should be easier to entice “voluntary taxes” in support of essential functions like defense and justice than it is to entice contributions to charitable organizations, which seldom yield more than “feel good” benefits to donors.

Not all fund-raising efforts for charities succeed in obtaining donations from everyone they solicit, but fund-raisers neither expect nor require 100-percent success. Similarly, an American Defense Association or Justice League would not require 100-percent success in its efforts to raise enough money to defray the costs of national defense and domestic justice. It is enough that the prospect of being “taxed voluntarily” to support such causes would appeal to a large number of affluent taxpayers.

Of particular interest to fund-raisers would be those individuals and couples with adjusted gross incomes in the top 50 percent of the AGI distribution. For tax year 2008, the top 50 percent paid 97 percent of federal income taxes collected by the federal government. Before the Great Recession and associated “stimulus” spending, when the federal budget was nearly in balance, spending on national defense and justice (at all levels of government) accounted for about 20 percent of all government spending. It seems to me that the a rationally self-interested person or couple in the top 50 percent would leap at the chance to eliminate all of his or their taxes if the alternative were to donate a smaller amount to the causes of defense and justice. There would be holdouts — especially among affluent leftists, of course — but there would also be the usual donors who give far more than their “fair share.”

Consider, for example, the persons in the top 1 percent of the AGI distribution, who paid 38 percent of the federal income taxes collected for 2008, or the persons in the top 10 percent, who paid 70 percent of the taxes. Members of those groups (as well as others in the top 50 percent) would have a strong incentive to ensure the provision of defense and justice, understanding (as most of them do) the importance of order and stability to their livelihoods.

Further, I expect that many of top income-earners would lead example (as they do for charities) with their contributions. Additionally, I would expect them to be leading contributors to advertising campaigns that explain the economic benefits of maintaining a robust defense and vigilant system of justice while, at the same time, paying a lot less for government services. Chief among the benefits would be stronger economic growth — as money is saved and invested instead of being poured down so many rat-holes and into counterproductive regulatory agencies. In the end, there would be more jobs, higher incomes, less need for charity, and more money with which to dispense charity to truly needy individuals.

In summary, Wilkinson’s analysis seems rooted in a sterile conception of rational self-interest. It seems to assume that bright, hard-working, high-earning individuals cannot perceive the real benefits that would flow from “voluntary taxation” for certain purposes, namely, national defense and domestic justice.

Positive Liberty vs. Liberty

There is a special kind of liberty known as “positive liberty,” which is inimical to “liberty,” as that term is properly understood. To show why, I begin by expanding on an earlier post, where I offer the following definition of liberty:

peaceful, willing coexistence and its concomitant: beneficially cooperative behavior

Liberty, thus defined, is liberty — full stop. It is neither negative nor positive. It is a modus vivendi that is accepted and practiced by a social group, in keeping with the group’s behavioral norms. There is no liberty if those norms do not include voice and exit, because willing coexistence then becomes problematic. (For a further elaboration, see “On Liberty” and scroll down to “What Liberty Is.”)

However, peaceful, willing coexistence is likely (and perhaps only) to be found where a close-knit social group lives by the Golden Rule:

One should treat others as one would like others to treat oneself….

The Golden Rule can be expanded into two, complementary sub-rules:

Do no harm to others, lest they do harm to you.

Be kind and charitable to others, and they will be kind and charitable to you.

The first sub-rule — the negative one — is compatible with the idea of negative rights, but it doesn’t demand them. The second sub-rule — the positive one — doesn’t yield positive rights because it’s a counsel to kindness and charity, not a command.

I call the Golden Rule a natural law because it’s neither a logical construct … nor a state-imposed one. Its long history and widespread observance (if only vestigial) suggest that it embodies an understanding that arises from the similar experiences of human beings across time and place. The resulting behavioral convention, the ethic of reciprocity, arises from observations about the effects of one’s behavior on that of others and mutual agreement (tacit or otherwise) to reciprocate preferred behavior, in the service of self-interest and empathy. That is to say, the convention is a consequence of the observed and anticipated benefits of adhering to it.

I must qualify the term “convention,” to say that the Golden Rule will be widely observed within any group only if the members of that group are generally agreed about the definition of harm, value kindness and charity (in the main), and (perhaps most importantly) see that their acts have consequences. If those conditions are not met, the Golden Rule descends from convention to admonition.

However,

Self-governance by mutual consent and mutual restraint — by voluntary adherence to the Golden Rule — is possible only for a group of about 25 to 150 persons: the size of a hunter-gatherer band or Hutterite colony. It seems that self-governance breaks down when a group is larger than 150 persons. Why should that happen? Because mutual trust, mutual restraint, and mutual aid — the things implied in the Golden Rule — depend very much on personal connections. A person who is loathe to say a harsh word to an acquaintance, friend, or family member — even when provoked — often waxes abusive toward strangers, especially in this era of e-mail and comment threads, where face-to-face encounters aren’t involved. More generally, it’s a human tendency to treat acquaintances differently than strangers; the former are accorded more trust, more cooperation, and more kindness than the latter. Why? Because there’s usually a difference between the consequences of behavior that’s directed toward strangers and the consequences of behavior that’s directed toward persons one knows, lives among, and depends upon for restraint, cooperation, and help. The allure of doing harm without penalty (“getting away with something”) or receiving without giving (“getting something for nothing”) becomes harder to resist as one’s social distance from others increases.

When self-governance breaks down, it becomes necessary to spin off a new group or to establish a central power (a state) to establish and enforce rules of behavior (negative and positive). The problem, of course, is that those vested with the power of the state quickly learn to use it to advance their own preferences and interests, and to perpetuate their power by granting favors to those who can keep them in office. It is a rare state that is created for the sole purpose of protecting its citizens from one another and from outsiders, and rarer still is the state that remains true to such purposes.

In sum, the Golden Rule — as a uniting way of life — is quite unlikely to survive the passage of a group from community to state. Nor does the Golden Rule as a uniting way of life have much chance of revival or survival where the state already dominates. The Golden Rule may have limited effect within well-defined groups (e.g., parishes, clubs, urban enclaves, rural communities), by regulating the interactions among the members of such groups. It may have a vestigial effect on face-to-face interactions between stranger and stranger, but that effect arises mainly from the fear that offense or harm will be met with the same, not from a communal bond.

In any event, the dominance of the state distorts behavior. For example, the state may enable and encourage acts (e.g., abortion, homosexuality) that had been discouraged as harmful by group norms; the ability of members of the group to bestow charity on one another may be diminished by the loss of income to taxes and discouraged by the establishment of state-run schemes that mimic the effects of charity (e.g., Social Security).

The attainment of something that all Americans would recognize as liberty is next to impossible. The United States does not comprise a single, close-knit social group, nor even a collection of close-knit social groups. It is a motley, shifting conglomeration of (mostly) loose-knit groups with widely varying social norms and conceptions of harm. It is only a slight exaggeration to say that America is a nation of strangers.

It follows that the only kind of state-sponsored liberty which is possible in America is so-called negative liberty, that is, a regime of negative rights:

freedom from force and fraud (including the right of self-defense against force)

property ownership (including the right of first possession)

freedom of contract (including contracting to employ/be employed)

freedom of association and movement.

But we are far from such a regime:

[M]ost government enactments deny negative rights; for example, they

compel the surrender of income to government agencies for non-protective purposes (violating freedom from force and property ownership)

compel the transfer of income to persons who did not earn the income (violating freedom from force and property ownership)

direct how business property may be used, through restrictions on the specifications to which goods must be manufactured (violating property ownership)

force the owners of businesses (in non-right-to-work-States) to recognize and bargain with labor unions (violating property rights and freedom of contract)

require private businesses to hire certain classes of persons (“protected groups”) and undertake additional expenses for the “accommodation” of handicapped persons (violating property rights and freedom of contract)

require private businesses to restrict or ban smoking (violating property rights and freedom of association)

mandate attendance at tax-funded schools and the subjects taught in those schools, even where those teachings run counter to the moral values that parents are trying to inculcate (violating freedom from force and freedom of association)

limit political speech through restrictions on political contributions and the publication of political advertisements (violating freedom from force and freedom of association).

On top of that,

[s]uch enactments also trample social norms. First, and fundamentally, they convey the message that government, not private social institutions, is the proper locus of moral instruction and interpersonal mediation. Persons who seek special treatment (privileges, a.k.a. positive rights) learn that they can resort to government for “solutions” to their “problems,” which encourages other persons to do the same thing, and so on. In the end — which we have not quite reached — social institutions lose their power to instruct and mediate, and become merely sources of solace and entertainment.

There is much more in the pages of this blog (e.g., here and here). The sum and substance of it all is that liberty is a dead letter in America. It has succumbed to a series of legislative, executive, and judicial acts that have, on the one hand, suppressed and distorted voluntary social and economic relationships and, on the other hand, bestowed positive rights on selected groups to the general detriment of liberty. Positive rights are grants of privilege that can come only at the expense of others, and which are therefore incompatible with the “willing” aspect of liberty.

The clamor for positive liberty ought to set off alarm bells in the minds of libertarians because positive liberty, wrongly understood, justifies positive rights. The last thing this nation needs is what passes for a philosophical justification of positive rights. The first thing this nation needs is a lot fewer positive rights.

Positive liberty is nevertheless on the agenda of the philosophers who blog at Bleeding Heart Libertarians. What is it? According to Wikipedia:

Positive liberty is defined as the power and resources to act to fulfill one’s own potential (this may include freedom from internal constraints); as opposed to negative liberty, which is freedom from external restraint….

…Specifically, … in order to be free, a person should be free from inhibitions of the social structure in carrying out their free will. Structurally speaking classism, sexism or racism can inhibit a person’s freedom….

In other words, it is not enough to have “peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.” That kind of liberty — liberty in the fullest sense — encompasses the acts of love, affection, friendship, neighborliness, and voluntary obligation that help individuals acquire the “power and resources” with which they may strive to attain the fruits of liberty, insofar as they are willing and able to do so.

That should be enough to satisfy the proponents of positive liberty at Bleeding Heart Libertarians, but I suspect otherwise. I would be more sanguine were they proponents of a proper definition of liberty, but they are not. Thus, armed with an inchoate definition of liberty, they are prepared to do battle for positive liberty and, I fear, the positive rights that are easily claimed as necessary to it; to wit:

A lack of “power” entitles certain groups to be represented, as groups, in the councils of government (a right that is not extended to other groups).

A lack of “resources” becomes the welfare entitlements of various kinds — for personal characteristics ranging from low intelligence to old age — which threaten to suck ever more resources out the productive, growth-producing sectors of the economy.

The exercise of “free will” becomes the attainment of certain “willed” outcomes, regardless of one’s ability or effort, which then justifies such things as an affirmative-action job, admission to a university, a tax-subsidized house, etc.

“Classism,” “sexism,” “racism,” and now “beauty-ism” become excuses for discriminating against vast swaths of the populace who practice none of those things.

With respect to the final point, a certain degree of unpleasantness inevitably accompanies liberty. Legal attempts to stifle that unpleasantness simply spread injustice by fomenting resentment and covert resistance, while creating new, innocent victims who are deemed guilty until they can prove their innocence.

In sum, the line between positive liberty and positive rights is so fine that the advocacy of positive liberty, however well meant, easily becomes the basis for preserving and extending the burden of positive rights that Americans now carry.

Substantive Due Process and the Limits of Privacy

TWO KINDS OF DUE PROCESS

David Bernstein of The Volokh Conspiracy discusses “The One and Only Substantive Due Process Clause,” (120 Yale Law Journal 408), by Ryan C. Williams, who is not a law professor but a living, breathing, practicing attorney. Here is the abstract of the article:

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well. An important though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive due process question must be the same for both provisions. This Article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: did the original meaning of each clause, at the time of its enactment, encompass a recognizable form of substantive due process? At the time of the Fifth Amendment’s ratification in 1791, the phrase “due process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure, with the second phrase having a somewhat broader connotation referring to existing positive law. Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive due process.” Between 1791 and the Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically, through judicial decisions at the state and federal levels and through the invocation of due process concepts by both proslavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery. By 1868, a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law. As a result, this Article concludes that the original meaning of one, and only one, of the two Due Process Clauses—the Due Process Clause of the Fourteenth Amendment—was broad enough to encompass a recognizable form of substantive due process [emphasis added].

What is substantive due process? Ryan helpfully contrasts it with procedural due process:

[T]he distinction between adjudication-related conduct and nonadjudication-related conduct is sufficiently distinct to serve as a useful dividing line for distinguishing between substantive and procedural rights.

Under the dichotomy sketched above, an interpretation of the Due Process Clauses can be categorized as “procedural due process” if it imposes no constraints on governmental deprivations of “life, liberty, or property” that do not relate to the form of adjudication that must be provided in connection with such deprivations and the procedures that must be observed in connection with such adjudication. By contrast, an interpretation of the Due Process Clauses can be classified as “substantive due process” if, and only if, it would prohibit governmental actors, in at least some circumstances, from depriving individuals of life, liberty, or property even if those individuals receive an adjudication in which “even the fairest possible procedure[s]” are observed. (Id. at 419)

Governmental power, in other words, has limits, and those limits may not (or should not) be breached simply by observing the niceties of judicial or legislative procedure.

THE LOCHNER ERA

Of particular interest are what Ryan calls “Police Powers” Due Process and “Fundamental Rights” Due Process. The former most famously (or infamously) prevailed in the U.S. Supreme Court’s so-called Lochner era (roughly 1897-1937), when the Court

invalidated state and federal legislation that inhibited business or otherwise limited the free market, including laws on minimum wage, child labor, regulations of banking, insurance and transportation industries.

The era takes its name from Lochner v. New York (1905), in which the Supreme Court struck down a State statute that attempted to impose a maximum-hours limitation on bakers. (I discuss this case in “Substantive Due Process, Liberty of Contract, and the States’ Police Power.”) Ryan writes about the “police powers” emphasis of the Lochner era:

The Lochner-era Court’s application of the Due Process Clauses encompassed review of both the ends that the legislature sought to achieve and the means employed to achieve such ends; if the Court determined that either the ends or means chosen exceeded the legislature’s legitimate authority, the law was condemned as a violation of due process. This more flexible conception of due process allowed for legislation to be upheld even if it interfered with preexisting rights or affected identifiable interests in different ways, so long as the government could point to some legitimate justification for the legislature’s decision. Conversely, legislation that fell outside the scope of the state’s traditional police powers could be invalidated even if it did not deprive individuals of preexisting property rights and did not operate unequally. The Lochner-era police powers cases also differed from the earlier property-focused vested rights and general law interpretations by placing principal emphasis on the protection of individual “liberty” rather than “property.” (Id. at 426-7)

The Court’s embrace of substantive due process was broken by the exigencies of the Great Depression, in which a “chastened” and reshaped Court found adequate justification to repudiate the Constitution in favor of the New Deal.

THE REINVENTION OF SUBSTANTIVE DUE PROCESS

The Court nevertheless resumed its embrace of substantive due process, in a different guise, when various majorities discovered “fundamental rights” in the emanations and penumbrae of the Constitution:

[A] new paradigm of substantive due process decisionmaking began to emerge in cases such as Griswold v. Connecticut [1965, contraception], Shapiro v. Thompson [welfare as a newcomer to a State, regardless of residency requirements, 1969], and Roe v. Wade [1973, abortion]. This new approach, which is the Court’s currently prevailing framework for dealing with substantive due process claims, places principal emphasis on identifying a narrow category of liberty interests that are deemed sufficiently “fundamental” to warrant heightened scrutiny and “forbids the government to infringe . . . ‘fundamental’ liberty interests at all . . . unless the infringement is narrowly tailored to serve a compelling state interest.” (Id. at 427, links added)

Why substantive due process for individuals proclaiming “lifestyle” rights but not for individuals and business owners striving to better their economic lot?

It is likely no coincidence that … early twentieth-century critics of the Supreme Court’s Lochner-era substantive due process jurisprudence, who conducted the first detailed examinations of the pre-Fourteenth Amendment meaning of “due process of law,” failed to identify much support for substantive due process. Nor is it a coincidence that more recent critics of post-Lochner substantive due process decisions have tended to endorse the conclusions of the Lochner-era critics. (Id. at 509-10)

In other words, it all depends on the ideological complexion of the Court. Perhaps even a Court with a solid originalist majority (i.e., a Court with one less Kennedy and at least two more Thomases) would not roll back the precedents of Griswold v. Connecticut and Lawrence v. Texas (2003, homosexual sodomy), but I would be surprised if it did not roll back the precedent of Roe v. Wade et seq.

If there is a fundamental right to privacy, surely it does not encompass everything that flows from private acts. And yet through judicial sleight-of-hand, Roe v. Wade moved constitutional interpretation in that direction.

THE “PRIVACY RIGHT” AND ROE V. WADE

I have written elsewhere about Roe v. Wade:

Abortion was considered murder long before States began to legislate against it in the 19th century. The long-standing condemnation of abortion — even before quickening — is treated thoroughly in Marvin Olasky’s Abortion Rites: A Social History of Abortion in America. Olasky corrects the slanted version of American history upon which the U.S. Supreme Court relied in Roe v. Wade.

Because abortion was not a right at the time of the adoption of the Ninth Amendment, there is no unenumerated right to abortion in the Constitution. The majority in Roe v. Wade (1973) instead seized upon and broadened a previously manufactured “privacy right” in order to legalize abortion….

In effect, the Roe v. Wade majority acknowledged that abortion is not even an unenumerated right. It then manufactured from specified procedural rights enumerated in the Bill of Rights — rights which are totally unrelated to abortion — and from strained precedents involving “penumbras” and “emanations,” a general right to privacy in order to find a “privacy” right to abortion….

It is therefore unsurprising that the majority in Roe v. Wade could not decide whether the general privacy right is located in the Ninth Amendment or the Fourteenth Amendment. Neither amendment, of course, is the locus of a general privacy right because none is conferred by the Constitution, nor could the Constitution ever confer such a right, for it would interfere with such truly compelling state interests as the pursuit of justice. The majority simply chose to ignore that unspeakable consequence by conjuring a general right to privacy for the limited purpose of ratifying abortion.

The spuriousness of the majority’s conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:

The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

That is, the majority simply drew an arbitrary line between life and death — but in the wrong place. It is as if the majority understood, but wished not to acknowledged, the full implications of a general right to privacy. Such a general right could be deployed by unprincipled judges to decriminalize a variety of heinous acts.

The Fourteenth Amendment may countenance a lot of things, but it should not be used to countenance murder.

Re-Forming the United States

UPDATE: The urgency of re-forming the United States is underscored by “Our Perfect, Perfect Constitution.” The author, Michael Stokes Paulsen (Distinguished University Chair and Professor of Law at the University of St. Thomas (Minnesota) School of Law), restates the entire Constitution in the form of twenty provisions that reflect the current state of constitutional law as established by decisions of the Supreme Court. Paulsen’s version of the Constitution is true, depressing, and enraging.

Paulsen wrote his paper before U.S. District Judge Gladys Keesler opined that the central government may regulate mental activity. Judge Keesler’s view, which is applauded on the left, is the last straw. The juggernaut that rules from Washington is nothing more than an alien occupying force. It should be treated accordingly by liberty-loving Americans.

The specter of constitutional revitalization haunts “liberals”:

Imagine that, a few years from now, Americans are suddenly plunged into a constitutional crisis. Imagine an economy still muddling in recession; a government rendered inept by the complete collapse of the Senate as a serious institution of deliberation or a continued division between House and Senate; a conservative Supreme Court gripped by a passion to restore the pre-New Deal version of the Commerce Clause (which treated commerce merely as the physical movement of goods across state lines); a militant Tea Party movement convinced that the Tenth Amendment imposes real limits on the lawmaking power of Congress, and is not simply a hollow “truism” saying that Congress can only do what it is constitutionally empowered to do. These days, conjuring up such a vision is not so hard. Imagine that somehow the belief took hold that what the Constitution needed was not a revision here or there, but wholesale replacement. (Jack Rakove of Stanford University, in “American Ratification,” Harvard Magazine, January-February 2011)

How much misrepresentation and distortion is packed into that paragraph? Let’s see:

1. The United States has been in constitutional crisis since the 1930s, when the Supreme Court — frightened by the Great Depression, cowed by FDR, and then reshaped by him — allowed Congress and the States to exceed their constitutional authority. To the Rakoves of this world, a constitutional crisis is what happens when there’s a movement to honor the spirit and letter of the Constitution.

2. The state of the economy, the state of the Senate, and a “divided” House and Senate (i.e., not both controlled by Democrats) are hardly the stuff of a constitutional crisis. The standing of the Constitution is — and should be — unaffected by such things, unless one believes (with the New Deal Supreme Court) that the law should bend with economic winds, and that it is the rightful place of Congress to actively involve itself in every nook and cranny of Americans’ lives.

3. The pre-New Deal version of the Commerce Clause is the correct one, contrary to Rakove’s desire for an all-powerful state.

4. The Tenth Amendment isn’t “hollow.” It underscores — for the benefit of the willfully obtuse, like Rakove — the express limits that the original Constitution places on Congress’s power. In leaving no doubt that the States and the people retain the powers not specifically assigned to Congress, it removes (or should remove) any ambiguity about the limited role that Congress (and the federal government) should play in the lives and businesses of Americans. It says that the Constitution means what it says. It is “hollow” to Rakove and his ilk only because they don’t want the Constitution to mean what it says.

5. In that vein, I must add that the “militant Tea Party” movement seeks to honor the entire Constitution, not just the important Tenth Amendment. Rakove wants to believe — or wants his readers to believe — that the Tea Party movement is made up of morons who don’t understand what’s in the original Constitution. Well, the true morons are the Rakoves, who believe that their expansive view of governmental power can’t be turned against them.

6. Rakove posits two options for dealing with the so-called crisis: a revision here or there, or wholesale replacement of the Constitution. There’s a third option: wholesale rewriting to reassert, in no uncertain terms, the meaning and purposes of the Constitution. That’s what Rakove and his ilk really fear, because they’re wedded to the judicially created, left-statist version of the Constitution that has replaced the real thing without benefit of an amendment.

For non-Rakovians — that is, for devotees of the real Constitution — I counsel the following steps:

A sufficient number of States (at least one-half of them) would declare their independence from the United States, on the ground that the central government has breached its contract with the States by persistently abusing its powers over many decades.

Those States would then convene a constitutional convention to re-form the United States, by adopting a new Constitution that — in no uncertain terms — restates the principles of the original Constitution and ensures their enforcement through additional checks on the central government.

With regard to the second point, Article V of the new Constitution would include this:

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.

There is this, in Article VI:

Each State retains the right to secede from this Union, but secession shall in each case be approved by three-fourths of the members of each house of a State’s legislature and ratified by the executive of the State within thirty days of its approval by both houses of the State’s legislature.

Articles VII and VIII, Keeper of the Constitution and Conventions of the States, 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.

Article IX would authorize 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.

I understand that I am proposing a radical step, but I believe that it is impossible to reinstate the real Constitution in any other way. Perhaps the threat of radical measures would have a sobering effect on those who are content with the status quo or incremental progress… but probably not.

See “The Constitution: Myths and Realities“.

More about Conservative Governance

In “Evolution, Human Nature, and ‘Natural Rights‘,” I quote at length from Michael Oakeshott’s essay “On Being Conservative (Rationalism in Politics and Other Essays, New and Expanded Edition). The point served by the quotation is that it is unnecessary to erect a regime of liberty on a deep philosophical foundation of the kind proffered by “natural rights” theorists. Conservatism, properly understood, is an attitude toward life, in general, and the role of government, in particular; it is not a political ideology.

There is much more to be said, and Oakeshott says it exceedingly well:

To some people, ‘government’ appears as a vast reservoir of power which inspires them to dream of what use might be made of it. They have favourite projects, of various dimensions, which they sincerely believe are for the benefit of mankind, and to capture this source of power, if necessary to increase it, and to use it for imposing their favourite projects upon their fellows is what they understand as the adventure of governing men. They are, thus, disposed to recognize government as an instrument of passion; the art of politics is to inflame and direct desire. In short, governing is understood to be just like any other activity — making and selling a brand of soap, exploiting the resources of a locality, or developing a housing estate — only the power here is (for the most part) already mobilized, and the enterprise is remarkable only because it aims at monopoly and because of its promise of success once the source of power has been captured….

Now, the disposition to be conservative in respect of politics reflects a quite different view of the activity of governing. The man of this disposition understands it to be the business of a government not to inflame passion and give it new objects to feed upon, but to inject into the activities of already too passionate men an ingredient of moderation; to restrain, to deflate, to pacify and to reconcile; not to stoke the fires of desire, but to damp them down. And all this, not because passion is vice and moderation virtue, but because moderation is indispensable if passionate men are to escape being locked in an encounter of mutual frustration. A government of this sort does not need to be regarded as the agent of a benign providence, as the custodian of a moral law, or as the emblem of a divine order. What it provides is something that its subjects (if they are such people as we are) can easily recognise to be valuable; indeed, it is something that, to some extent, they do for themselves in the ordinary course of business or pleasure…. Generally speaking, they are not averse from paying the modest cost of this service; and they recognize that the appropriate attitude to a government of this sort is loyalty … , respects and some suspicion, not love or devotion or affection. Thus, governing is understood to be a secondary activity; but it is recognised also to be a specific activity, not easily to be combined with any other…. The subjects of such a government require that it shall be strong, alert, resolute, economical and neither capricious nor over-active: they have no use for a referee who does not govern the game according to the rules, who takes sides, who plays a game of his own, or who is always blowing his whistle; after all, the game’s the thing, and in playing the game we neither need to be, nor at present are disposed to be, conservative.

But there is something more to be observed in this style of governing than merely the restraint imposed by familiar and appropriate rules. Of course, it will not countenance government by suggestion or cajolery or by any other means than by law…. But the spectacle of its indifference to the beliefs and substantives activities of its subjects may itself by expected to provoke a habit of restraint. Into the heat of our engagements, into the passionate clash of beliefs, into our enthusiasm for saving the souls of our neighbours or of all mankind, a government of this sort injects an ingredient, not of reason … , but of the irony that is prepared to counteract one vice by another, of the raillery that deflates extravagance without itself pretending to wisdom: indeed, it might be said that we keep a government of this sort to do for us the scepticism we have neither the time nor the inclination to do for ourselves. It is like the cool touch of the mountain that one feels in the plain even on the hottest summer day. Or, to leave metaphor behind, it is like the ‘governor’ which, by controlling the speed at which its marts move, keeps an engine from racketing itself to pieces.

It is not, then, mere stupid prejudice disposes a conservative to take this view of the activity of governing; nor are any highfalutin metaphysical beliefs necessary to provoke it or make it intelligible. It is connected merely with the observation that where activity is bent upon enterprise the indispensable counterpart is another order of activity, bent upon restraint, which is unavoidably corrupted (indeed, altogether abrogated) when the power assigned to it is used for advancing favourite projects. An ‘umpire’ what at the same time is one of the players is no umpire; ‘rules’ about which we are not disposed to be conservative are not rules but incitements to disorder; the conjunction of dreaming and ruling generates tyranny.

Political conservatism is, then, not at all unintelligible in a people disposed to be adventurous and enterprising, a people in love with change and apt to rationalise their affections in terms of ‘progress’. And one does not need to think that the belief in ‘progress’ is the most cruel and unprofitable of all beliefs, arousing cupidity without satisfying it, in order to think it inappropriate for a government to be conspicuously ‘progressive’. Indeed, a disposition to be conservative in respect of government would seem to be pre-eminently appropriate to men who have something to do and something to think about on their own account, who have a skill to practise or an intellectual fortune to make, to people whose passions do not need to be inflamed, whose desires do not need to be provoked and whose dreams of a better world need no prompting. Such people know the value of a rule which imposes orderliness without irecting enterprise, a rule which concentrates duty so that room is left for delight…. (Id., pp. 431-5)

Contrast the conservative attitude to the attitude of left-wing intellectuals, do-gooders, and politicians to whom government “appears as a vast reservoir of power which inspires them to dream of what use might be made of it.” It may be true, as Oakeshott charitably asserts, that some of them “sincerely believe [that their favorite projects] are for the benefit of mankind.” But, in my observation, the left is largely animated by the will to power, for its own sake.

Liberty, Equality, Fraternity: Part I

I recently discovered James Fitzjames Stephen’s long essay, Liberty, Equality, Fraternity. Stephen (1829-94) was an uncle of Virginia Woolf, whose mush-minded feminism was antithetical to her uncle’s rigorous cast of mind.

I am working my way through Stephen’s essay. As I proceed I will post and comment on especially trenchant passages. In this first installment, I offer some excerpts of the Foreword by Stuart Warner, editor of the Liberty Fund edition (linked above). My comments are in bold type; everything else is a direct quotation from the Liberty Fund edition.

FOREWORD

James Fitzjames Stephen’s Liberty, Equality, Fraternity figured prominently in the mid- to late nineteenth century Victorian debates on two concepts at the heart of politics in the modern world—liberty and equality. Understanding himself to be a defender of an older English Liberalism that he thought to be under assault and weakening at an ever-quickening pace, Stephen attempted in Liberty, Equality, Fraternity to offer a corrective to what he believed were the mistaken views of liberty, equality, and fraternity that were leading the charge. He found these views most fully and powerfully expressed in three of John Stuart Mill’s works: On Liberty, The Subjection of Women, and Utilitarianism. Stephen thus subjected Mill’s political philosophy to intense criticism in Liberty, Equality, Fraternity. Yet Stephen was no mere polemicist, and throughout Liberty, Equality, Fraternity we find Stephen’s own understanding of liberty—as ordered liberty—equality—as equality under law—and fraternity—as a value incompatible with a free society—braided around his critique of Mill. And it is this understanding that is the most important feature of Liberty, Equality, Fraternity, and is eminently worthy of the attention of anyone concerned with the character of a free society….

The French Revolution gave birth to the creed “Liberty, Equality, Fraternity”; however, this creed outlasted the Revolution, finding expression in the nineteenth century, both on the continent and in England. In offering a powerful polemic against this creed in Liberty, Equality, Fraternity, Stephen is most emphatically not presenting himself as a defender of, as he puts it, “Slavery, Caste, and Hatred.” But he believed that many exponents of the creed of liberty, equality, and fraternity exaggerated the advantages and ignored the disadvantages of the political arrangements intended by this famed triptych of values, thereby distorting a proper understanding of liberty, equality, and fraternity along the way. In Liberty, Equality, Fraternity, Stephen makes a point of revealing the character of these disadvantages….

…Stephen recognizes liberty to be an instrumental value, not a value in and of itself; and the ultimate value that liberty principally serves is the well-being of society. We should be careful not to misunderstand this feature of Stephen’s thought—as a common understanding of Stephen would have us do—as portraying either a disregard for liberty or an authoritarian bent, for Liberty, Equality, Fraternity does not support such a reading. Not to value liberty as an end in itself is not to treat it lightly or to shy away from its endorsement as central to a civilized world. It is rather, as Stephen would see it, an admission that liberty, along with all of the other social elements of human life, has its advantages and disadvantages; and, if we are primarily concerned with the well-being of society, then we should not blindly support any given liberty in those circumstances in which its disadvantages outweigh its advantages.

The second feature of Stephen’s conception of liberty is that liberty is fundamentally a negative concept. Stephen understands liberty at its core to be an absence of restraint; however, liberty cannot be understood to involve an absence of all restraint; for Stephen, like Hobbes, recognizes that it is impossible for a society and, therefore, liberty to exist in the absence of all restraint. Restraints are required if there is to be any society at all, if only because the human condition is one in which the actions of some frequently and inevitably conflict with the actions of others. This understanding of the role of restraint in society is the basis for Stephen’s distinguishing between liberty and license, and it encourages him to understand liberty as an “absence of injurious restraint.”In this conception of liberty, morality, law, and religion are understood to restrain an individual’s actions, but not injuriously, and hence do not constitute an infringement of his liberty. In fact, in the deepest sense, it is these restraints that make liberty of action possible. And since these restraints constitute a realm of power, Stephen can maintain that, “Liberty, from the very nature of things, is dependent upon power….”…

Stephen is promoting an understanding of ordered liberty or liberty under morality and law. Part of the value of liberty lies in its allowing individuals to pursue their own choices or, more exactly, a certain set of choices rather than others, for this contributes to the well-being of society. Importantly, some sets of choices must be excluded. Genuine options are possible for human beings only within the context of a web of restraint provided by the moral, political, legal, and religious institutions that form the social arrangements in which individuals can pursue their own ends in concert with one another. Therefore, on Stephen’s analysis, the character and value of liberty reside in the restraints that frame it: there is no liberty outside of restraint.

Morality is foremost among the restraints that shape society generally and a free society in particular. For Stephen, morality is constituted in some measure by the fear of disapprobation, the fear of the opinion of others, the fear of being ostracized. Thus, Stephen remarks that “the custom of looking upon certain courses of conduct with aversion is the essence of morality.” And this aversion or disapprobation Stephen understands as being coercive. Although morality on this account might therefore be considered a system of force, the force in question is the pressure imposed by others and not punishment (or the threat of punishment) inflicted by government. Here we must underscore the idea that, as Stephen sees it, the restraints imposed by morality are vastly more extensive and important than those of law in establishing the web of restraint in which liberty is formed and has value:

Criminal legislation proper may be regarded as an engine of prohibition unimportant in comparison with morals and the forms of morality sanctioned by theology. For one act from which one person is restrained by the fear of the law of the land, many persons are restrained from innumerable acts by the fear of the disapprobation of their neighbors, which is the moral sanction; or by the fear of punishment in a future state of existence, which is the religious sanction; or by the fear of their own disapprobation, which may be called the conscientious sanction….

Given that liberty is of instrumental value for Stephen, it is easy to understand why he rejects any categorical, simple principle of liberty, one that would specify exactly which liberties should be protected, and where and when. “We must,” Stephen writes, “proceed in a far more cautious way, and confine ourselves to such remarks as experience suggests about the advantages and disadvantages of compulsion and liberty respectively in particular cases.” However, there are certain liberties that Stephen highlights in Liberty, Equality, Fraternity and in other of his writings that he believes to be of paramount importance to civilized life. The first is property: “Of all items of liberty, none is either so important or so universally recognized as the liberty of acquiring property.” The second liberty of great importance to Stephen, perhaps surprisingly, is privacy: “Legislation and public opinion ought in all cases whatever scrupulously to respect privacy…. To try to regulate the internal affairs of a family, the relations of love or friendship, or many other things of the same sort, by law or by the coercion of public opinion, is like trying to pull an eyelash out of a man’s eye with a pair of tongs. They may put out the eye, but they will never get hold of the eyelash.”

Essential to protecting these liberties and others is the rule of law. And so closely linked is the rule of law to various liberties that Stephen suggests the rule of law is itself a liberty; for in a significant way, the procedures afforded to individuals by the rule of law specify the liberties that an individual has.

For Stephen, the rule of law is a remarkable moral conquest, a monumental achievement over despotism and the desires of some to enslave others for their own purposes. The rule of law both constitutes and vouchsafes liberties that Stephen, although holding them to be instrumentally valuable, embraces and understands to be of paramount importance to the civilized world he deeply valued….

Legislate how you will, establish universal suffrage, if you think proper, as a law which can never be broken. You are still as far as ever from equality. Political power has changed its shape but not its nature. The result of cutting it up into little bits is simply that the man who can sweep the greatest number of them into one heap will govern the rest….

Whatever may be the benefits of democracy, it also levies severe costs that render it a languid business. For the “wirepullers” need only satisfy an ignorant multitude, and this, Stephen feared, would ultimately lead to a debased and mediocre culture, one predicated on sordidness and vulgarity. In order to satisfy the unenlightened, these new rulers would extend government into the deepest recesses of the lives of individuals, willingly abandoning certain liberties along the way.

The final paragraph is a diamond, in a field of precious stones.

I have written so many posts which touch on the themes sketched by Warner that I can only refer you to a sample of them:
The Paradox of Libertarianism
On Liberty
Democracy and Liberty
The Interest-Group Paradox
Inventing “Liberalism”
What Is Conservatism?
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
Law and Liberty
Negative Rights, Social Norms, and the Constitution
Line-Drawing and Liberty
The Divine Right of the Majority
Our Enemy, the State
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?

Things I’m Not Doing Today

There are a lot of things I’m not doing today, even though the Demo-critters in Congress and their regulatory kin believe that they’re good for me or promote the “general welfare”:

Preventive health care is actually more costly than the vigilant treatment of symptoms, so I’m not going to a doctor for a “cost saving” checkup.

I refuse to take statins — today and every other day — despite the official belief that statins will cut my cholesterol. Statins don’t mix with alcohol, and I’d rather be a moderate drinker, and a happier person for it, than a miserably abstemious person with higher risk of stroke or heart disease.

Speaking of health, I’m not reading the labels on packaged foods, because the labels won’t tell me if there’s any poison in the products.

My car is now two years old, which means that it probably emits more CO2 than it did when it was new. But I’m not going to buy a new car.

It’s cold today, so I’m running the furnace and emitting more CO2. I know that I should freeze to death before adding to the CO2 level in the atmosphere, but I choose not to freeze to death. Come to think of it, I’ll also light my gas fireplace later, while I’m watching a movie. Or I may listen to music and read a book, while basking in the glow of a 200-watt incandescent bulb.

It happens that I need some more light bulbs, but I’m not going to replace them with CFLs. In fact, I’m going to buy a lifetime supply of incandescent bulbs while they’re still available.

Finally, I’m not spending any money today, despite the fact that my failure to spend will have affect interstate commerce (as Demo-critters define commerce).

Points of Agreement and Reinforcement

Scott Lincicome, Don Boudreaux, and Mark Perry continue their stalwart defense of free trade (latest entries here, here, and here). The controversy revolves around the notion prevalent in “liberal” circles that exports are “good” and imports are “bad.” This is an old view, which Henry Hazlitt addressed in Economics in One Lesson:

(From the 1952 edition. Originally published in 1946).

I couldn’t agree more with Lincicome, Boudreaux, Perry, and Hazlitt — as you will see if you go here, here, and here.

John Goodman keeps tabs on the abomination known as Obamacare. His many post-enactment observations about Obamacare include these:

Docs Declare “No Confidence” in AMA, Exercise as Anger Management, and the Upcoming Nursing Shortage
Doctors are Leaving Medicare
Who is Going to Provide the Extra Care?
Selling Health Reform to the Victims
The Coming Doctor Shortage
Victims of Health Care Reform

None of this comes as a surprise to me. I warned against Obamacare in several pre-enactment posts:

Rationing and Health Care
The Perils of Nannyism: The Case of Obamacare
More about the Perils of Obamacare
Health-Care Reform: The Short of It

Goodman also offers a tantalizing post about the idea of testing public policies before they are fully implemented. The idea of testing public policies is one of the arguments for true federalism, where the central government has a hands-off policy on economic and social matters (but not civil rights). Only true federalism — which this nation enjoyed (more or less) until the subversion of the Commerce Clause by the Interstate Commerce Act — will dispel the “anger” toward the central government that deeply, and justly, animates a large number of Americans.

Big-government advocate Linda Greenhouse now opposes broadly worded delegations of power to subordinate authorities, because the broadly worded power, in the present instance, would

authoriz[e] the secretary of Homeland Security to “waive all legal requirements” that the secretary, in his or her “sole discretion, determines necessary to ensure expeditious construction of the barriers and roads [comprising the border fence project].”

The writer of the quoted article notes the irony in Greenhouse’s present position. It puts her on the side of Judge Douglas Ginsburg, who argued against broad delegations of congressional authority in “Delegation Running Riot” (Regulation, 1995, no. 1), where he coined the term “the Constitution-in-exile”:

So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes.

All of which reminds me of an old post of mine about the Constitution in exile.

Is the Constitution True? An Addendum

See “The Constitution: Myths and Realities“.

Obama’s New Regulatory Regime

Eric Posner, writing in The New Republic (“Obama’s Cost-Benefit Revolution“), comments on Obama’s new executive order about cost-benefit analysis and regulation. Posner offers some background:

Long ago, cost-benefit analysis was a rallying cry for conservatives. It was brought to government by none other than Ronald Reagan, in Executive Order 12291 of 1981. Reagan was riding the wave of the deregulatory movement, which held that regulation of industry was excessive and stunted economic growth. His order stipulated that agencies should issue regulations only after finding that the benefits exceeded the costs.

Outraged liberals charged that cost-benefit analysis was a pretext to stifle regulation, and that it was arbitrary because of the difficulty of attaching dollar values to lives, environmental goods, and other regulatory benefits. Conservatives replied that cost-benefit analysis blocks bad regulations: Why would one support a regulation that produces higher costs than benefits? At the time, the alternative was regulation that seemed to reflect no more than the instincts of bureaucrats (or the agendas of interest groups), accompanied by impenetrable bureaucratese. The debate continued in this vein for decades, but over time, positions shifted. Some liberals came to see cost-benefit analysis as a good-government tool that promotes transparency and accountability, while some conservatives began to wonder whether it confers legitimacy on the New Deal state.

Cost-benefit analysis — even when it is done well — is a sham. But Obama’s approach (an extension of Clinton’s) reveals it as a scam:

Now, the press has reported that Obama’s executive order, which explicitly renews Clinton’s, signals victory for business. But the executive order also provides plenty of wiggle room that can be exploited by pro-regulatory forces, as indeed did Clinton’s before it. Unlike Reagan’s original order, which simply asked agencies to perform cost-benefit analysis, Clinton’s allowed agencies also to take account of “equity.” Obama’s adds that agencies should take account of “human dignity” and “fairness,” values, it helpfully notes, that are “difficult or impossible to quantify.” This is problematic because quantification is the point of cost-benefit analysis. Cost-benefit analysis works in the first place only because it imposes mathematical discipline on agencies. They must supply evidence that a proposed regulation has certain benefits and costs, monetize those benefits and costs, and report a number. If the number is greater than zero, then the agency may regulate. If agencies can instead point to unquantifiable benefits such as the promotion of human dignity, they can do whatever they want, and the main selling point of cost-benefit analysis—government transparency—is eliminated.

The sham to which I refer above is this:

One person’s benefit cannot be compared with another person’s cost. Suppose, for example, the City of Los Angeles were to conduct a cost-benefit analysis that “proved” the wisdom of constructing yet another freeway through the city in order to reduce the commuting time of workers who drive into the city from the suburbs. In order to construct the freeway, the city must exercise its power of eminent domain and take residential and commercial property, paying “just compensation,” of course. But “just compensation” for a forced taking cannot be “just” — not when property is being wrenched from often-unwilling “sellers” at prices they would not accept voluntarily. Not when those “sellers” (or their lessees) must face the additional financial and psychic costs of relocating their homes and businesses, of losing (in some cases) decades-old connections with friends, neighbors, customers, and suppliers. (This is from “Greed, Cosmic Justice, and Social Welfare“; see also “Modern Utilitarianism.”)

Throwing “equity,” “human dignity,” and “fairness” into the equation takes us from sham to scam. As Posner says, “[t]hese wiggle words … might be licenses to agencies to regulate however they want to.” There’s no “might” about it.

Well, there is a kind of “might” about it. The might of government regulators to force their preferences on us.

Is The Constitution True?

See “The Constitution: Myths and Realities“.

Does Congress Have the Power to Regulate Inactivity?

Regarding the constitutionality of the individual mandate, Orin Kerr poses the following hypothetical:

If a person comes into innocent possession of child pornography — for example, if you receive an unsolicited book in the mail, or an e-mail with an attachment, that contains child pornography — the law requires you to act to avoid criminal liability. Specifically, the person must:

promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) [take] reasonable steps to destroy each such visual depiction; or
(B) report[] the matter to a law enforcement agency and afford[] that agency access to each such visual depiction.

18 U.S.C. 2252(c). If a person does not do this, then he or she is guilty of a federal felony crime that has quite severe sentences.

I have two questions for proponents of the activity/inactivity distinction. First, in your view, does this law extend beyond Congress’s power by regulating inactivity?

Second, if you think that this mandate exceeds the Commerce Clause power, what law must be struck down? The quoted statute, 18 U.S.C. 2252(c), is a statutory exemption to liability in the child pornography law. It is a “mandate” in the sense that it gives people a way to avoid going to jail. If the child pornography laws are an unconstitutional mandate, must the child pornography laws be struck down at least as applied to innocent possession? In other words, is it beyond the reach of Congress to require those who come into innocent possession of child pornography to take reasonable steps to destroy it or report the matter to law enforcement?

My response:

First, in your view, does this law extend beyond Congress’s power by regulating inactivity?

The law exceeds Congress’s power by attempting to reach beyond interstate commerce. The transmission of pornography across state lines may be within Congress’s reach. What happens to pornography when it reaches a destination is not within Congress’s reach, unless that destination is merely a node in the chain of interstate commerce.

Second, if you think that this mandate exceeds the Commerce Clause power, what law must be struck down?

The law that requires one to act to avoid criminal liability. The possession of pornography (where possession is not for the purpose of interstate transmission) should be covered (or not) by state law.

In sum, the hypothetical doesn’t really address the activity/inactivity issue. A relevant hypothetical: Congress passes a law that requires every household to buy a subscription to a news magazine (Time, Newsweek, etc.) because (a) such magazines are distributed across state lines, (b) there is a compelling interest in their survival, and (c) because of (a) and (b) Congress has the power to regulate inactivity in the market for news magazines by compelling every household to subscribe to at least one of them.

In other words, the purpose of the individual mandate is not to help Congress enforce a legitimate regulation of interstate commerce. The purpose of the individual mandate is to help Congress regulate an entire market, known broadly as “health care,” on the excuse that some of the things involved in that market happen to be transported across state lines. Moreover, the “high costs” that have been used as an excuse for (further) meddling in the market are largely the result of artificially high demand for medical services — encouraged by “free” and “cheap” access via Medicare and Medicaid — combined with the suppression of supply by arbitrarily low reimbursement rates and red tape.

See also “The Constitution: Myths and Realities“.

Does the Power to Tax Give Congress Unlimited Power?

Some commentators have suggested that the law requiring individuals to buy health insurance (the individual mandate) would be upheld if it had been cast from the beginning as a tax rather than a penalty for failing to participate in commerce. A tax, according to the commentators, need not be tethered to the Commerce Clause because the power to tax is separate and distinct from the power to regulate commerce. The implication of that argument is that the power to tax is unlimited in its scope and purpose.

This is just another way of trying to grant unlimited power to the federal government. And yet, the Constitution specifically limits and enumerates the powers of the federal government — specifically, the subjects upon which Congress may legislate. (The “living Constitution,” government by executive order, and legislation by judicial fiat are “liberal” ways of getting around the limitations of the Constitution.) If follows that the power to tax is limited to taxation for the affirmative purposes enumerated in Article I, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

As I have shown (“The Unconstitutionality of the Individual Mandate“), Obamacare (along with Social Security, Medicare, Medicaid, and much else) is not comprehended in the power to regulate interstate commerce, from which it follows that the individual mandate is not a necessary and proper law.

What about the “general Welfare”? May not Congress levy taxes for the purpose of promoting it? That power seems to be unrestricted, or so “liberals” would have it.

But the admonition to “provide for … the general Welfare,” is not a license to do anything and everything within the imagination of congressional majorities. It is in fact a further limitation on the enumerated powers of Congress.

The General Welfare Clause, as it is known, means that when Congress executes any of its enumerated powers, it is supposed to execute them in a way that is beneficial for the whole of the United States, as opposed to favoring particular States or regions. Were Congress to take the Constitution seriously, American taxpayers would not suffer the abominations known as “earmarks” and “pork barrel” legislation.

My view is that of James Madison, who explained the General Welfare Clause in the course of the debate about the ratification of the Constitution:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. (Federalist No. 41)

The more expansive view — of an unlimited power to tax (and spend) for any purpose — did not prevail until the New Deal era, when the U.S. Supreme Court lost its way.

See “The Constitution: Myths and Realities“.

“Intellectuals and Society”: A Review

Thomas Sowell‘s Intellectuals and Society is a rewarding and annoying book.

The book is rewarding because it adds to the thick catalog of left-wing sins that Sowell has compiled and explicated in his long career as a public intellectual. When Sowell criticizes the anti-gun, soft-on-crime, peace-at-any-price, tax-spend-and-regulate crowd, he does it by rubbing their noses in the facts and figures about the messes that have been created by the policies they have promoted.

Having said that, I must also note the ways in which Intellectuals and Society annoys me, namely, that it is verbose and coy about the particular brand of intellectualism that it attacks.

VERBOSITY

Regarding verbosity, here is a randomly chosen example, from page 114:

Abstract people are above all equal, though flesh-and-blood people are remote from any such condition or ideal. Inequalities of income, power, prestige, health, and other things have long preoccupied intellectuals, both as things to explain and things to correct. The time and effort devoted to these inequalities might suggest that equality is so common or so automatic that its absence requires an explanation. Many intellectuals have approached equality in much the same spirit as Rousseau approached freedom: “Man was born free, and he is everywhere in chains.” To much of the modern intelligentsia, man is regarded as having been born equal but as having become mysteriously everywhere unequal.

Which means:

The notion of equality propounded by left-wing intellectuals bears no relation to the reality of the human condition. But the false ideal of equality enables leftists to advance the notion that disparities of income, power, prestige, and health (among other things) are injustices that call out for correction.

There are other ways of saying the same thing — all of them equally concise and therefore easier for the reader to grasp. Dozens, if not hundreds, of other passages in Intellectuals cry out for the same kind of ruthless editing. With that done, the book would be more compelling, because the facts and figures that make Sowell’s case against leftist intellectuals would stand out more sharply.

THE TRUE SUBJECTS OF THE BOOK

This brings me to the “intellectuals” who are the subject of the book. Sowell’s definition of intellectuals is so broad that it includes him and others of his ilk:

Here “intellectuals” refers to an occupational category, people whose occupations deal primarily with ideas — writers, academics, and the like. Most of us do not think of brain surgeons or engineers as intellectuals, despite the demanding mental training that each goes through, and virtually no one regards even the most brilliant and successful financial wizard as an intellectual.

At the core of the notion of an intellectual is the dealer in ideas, as such — not the personal application of ideas, as engineers apply complex scientific principles to create physical structures or mechanisms. A policy wonk whose work might be analogized as “social engineering,” will seldom personally administer the schemes that he or she creates or advocates. That is left to bureaucrats, politicians, social workers, the police or whoever else might be directly in charge of carry out the ideas of the policy wonk. (Intellectuals and Society, pp. 2-3)

Sowell’s definition encompasses thinkers who devoted much (or all) of their careers to combating the kinds of statist policies advanced by the left-wingers who are the real targets of Intellectuals and Soceity. Sowell even mentions two anti-statist intellectuals — Friedrich Hayek and Milton Friedman — in the first chapter of his book, in a context which suggests that they are among his targets. But Sowell later invokes Hayek, Friedman, and other “conservative” intellectuals as he confronts left-wing ideas and their consequences.

There can be no doubt that Sowell’s fire is directed at left-wing academicians and pundits — and their enablers in political-bureaucratic-media complex — for the many good reasons documented in the book. A truth-in-packaging law for book titles — a left-wing idea if ever there was one — would require the renaming of Intellectuals and Society to Left-Wing Intellectuals and the Dire Consequences of their Ideas.

My aim is not to quibble with Sowell’s title, but to lament his lack of clarity about which set of intellectuals he is attacking, and why that set of intellectuals deserves reproach, whereas Hayek, Friedman, and company do not. Surely the author of Intellectuals and Society — who is, by his own definition, an intellectual — does not mean to denigrate his decades of research and writing in the service of liberty. (This is not to say that conservatives and self-styled libertarians are above reproach; they are not, as I show elsewhere in this blog. But left-wing “intellectuals” deserve a special place in hell for their contributions to the destruction of the social fabric and demise of liberty, which Sowell so thoroughly documents.)

THE LEFT AND ITS ILLUSIONS

Now for the meat of Intellectuals and Society. And beneath an over-abundance of dressing, there is plenty of meat. Sowell draws on his own work and that of many distinguished philosophers and scholars as he puts the lie to left-wing ideas and policies. Thus we find the likes of Gary Becker, William F. Buckley Jr., Edmund Burke, Richard Epstein, Friedman, Hayek, Eric Hoffer, Paul Johnson, Jean-Francois Revel, Adam Smith, and James Q. Wilson pitted against left-wing stars of the past and present, including Louis D. Brandeis, Noam Chomsky, the Clintons, Herbert Croly, John Dewey, Walter Duranty, Ronald Dworkin, Paul Ehrlich, William Godwin, Edward Kennedy, Paul Krugman, Harold Laski, Roscoe Pound, Jean-Jacques Rousseau, Arthur M. Schlesinger Jr., George Bernard Shaw, the Webbs, and H.G. Wells.

Because of the timing of the book’s publication, Barack Obama makes only a cameo appearance as a senator who opposed the surge in Iraq:

[Obama] said in January 2007 that the impending surge was a “mistake that I and others will actively oppose in the days to come.” He called the projected surge a “reckless escalation,” and introduced legislation to begin removal of American troops from Iraq no later than May 1, 2007…. Another 20,000 troops [Obama said] “will not in any imaginable way be able to accomplish any new progress.” (p. 268)

Intellectuals and Society does not directly address the “highlights” of Obama’s presidency to date: “stimulus” spending, Obamacare, and new financial regulations. But they are merely new manifestations of old policies that — among others — the book amply discredits.

But I am getting ahead of myself. The hunt for left-wing error begins in earnest with “Knowledge and Notions,” Chapter 2 of Intellectuals and Society. There, Sowell highlights some leading tendencies of left-wingers. There are the experts in particular fields who act as if their expertise gives them license to expound on any and all subjects. Appositely, Sowell quotes Roy Harrod on John Maynard Keynes:

He held forth on a great range of topics, on some of which he was thoroughly expert, but on others of which he may have derived his views from the few pages of a book at which he had happened to glance. The air of authority was the same in both cases. (p. 12)

Sowell then turns to the matter of centralized, expert knowledge vs. decentralized knowledge, and how the former can never substitute for the latter when it comes to making personal and business decisions — left-wing dogma to the contrary. Here, Sowell echoes Hayek’s Nobel Prize lecture, “The Pretence of Knowledge.”

The final pages of Chapter 2 are devoted to a critique of rationalism. This is the habit of mind, usually found on the left, by which intellectuals superimpose their views of what “ought to be” on decades and centuries of human striving, and pronounce the results of that striving “irrational.” (A recent case in point is Judge Vaughn Walker’s fatuous decision in Perry v. Schwarzenegger.)

Chapter 4, which is out of place, continues in the same vein as Chapter 2. That is, it expose more systemic errors of the left-wing view of the world. The sequence opens with a reprise of the theme of Sowell’s earlier book, A Conflict of Visions, which is followed by a departure from the studied neutrality of that book:

Th[e] vision of society … in which there are many “problems” to be “solved” by applying the ideas of morally anointed intellectual elites is by no means the only vision, however much that vision may be prevalent among today’s intellectuals. A conflicting vision has co-existed for centuries — a vision in which the inherent flaws of human beings are the fundamental problem and social contrivances are simply imperfect means of trying to cope with that problem…. (p. 77)

[That conflicting] vision is a sort of zero-based vision of the world and of human beings, taking none of the benefits of civilization for granted. It does not assume that we can begin with what we already have and simply tack on improvement, without being concerned at every step with whether these innovations jeopardize the very processes and principles on which our existing level of well-being rests…. Above all, it does not assume that untried theories stand on the same footing as institutions and practices whose very existence demonstrate their ability to survive in the world of reality…. (p. 79)

If you happen to believe in free markets, judicial restraint, traditional values and other features of the [constrained] vision, then you are just someone who believes in free markets, judicial restraint and traditional values. There is no personal exaltation resulting from those beliefs. But to be for “social justice” and “saving the environment,” or to be “anti-war” is more than just a set of beliefs about empirical facts. This [unconstrained] vision puts you on a higher moral plane as someone concerned and compassionate, someone who is for peace in the world, a defender of the downtrodden, and someone who wants to preserve the beauty of nature and save the planet from being polluted by others less caring. In short, one vision makes you somebody special and the other vision does not. These visions are not symmetrical…. (pp. 79-80)

That is to say, adherents of the constrained vision (conservatives) put great stock in what works, and change it only for the sake of improving it, and not for the sake of changing it because it doesn’t comport with their a priori views of how the world “ought to be.” By contrast, adherents of the unconstrained vision (the left) are wedded to the rhetoric of “ought to be” and its close relation, the Nirvana fallacy. They judge existing arrangements against unattainable standards of perfection (invented by themselves), and proclaim themselves to be on the side of all that is good. The adherents of the constrained vision point out, quite rightly, that the left’s proposals are inherently flawed because they fail to take into account the ways in which human nature produces unintended consequences.

Sowell has more to say about the unconstrained vision; briefly, it invents “rights” (to a “living wage,” “decent housing,” and “affordable health care,” and so on) that cause “compassionate” politicians to impose obligations on third parties (i.e., hapless taxpayers). This legalized theft — for that is what it is — is committed with scant regard for the good that taxpayers would do with their own money; for example:

Save it in the form of bank deposits, bonds, and stocks so that businesses may be formed, expand, and adopt more productive technology, thus creating jobs and fueling economic growth.

Help private charities and members of their immediate families, who are no less worthy of such help than complete strangers (unless, of course, you are an omniscient leftist who thinks otherwise).

But such considerations are beneath the left, whose mission is to “do good,” and damn the consequences.

On that note, I return to Sowell’s dissection of left-wing rhetoric. Here are some other incisive passages from Chapters 4:

That some people [the left] should imagine that they are particularly in favor of progress is not only another example of self-flattery but also of an evasion of the work of trying to show, with evidence and analysis, where and why their particular proposed changes would produce better end results than other people’s proposed changes. Instead, [those other people] have been dismissed … as “apologists for the status quo.” (pp. 101-2)

If the real purpose of social crusades is to make the less fortunate better off, then the actual consequences of such policies as wage control become central and require investigation…. But if the real purpose of social crusades is to proclaim oneself to be on the side of the angels, then such investigations have a low priority…. The revealed preference of many, if not most, of the intelligentsia has been to be on the side of the angels. (pp. 104-5)

…William Godwin’s notion that the young “are a sort of raw material put into our hands” remains, after two centuries, a powerful temptation to classroom indoctrination in schools and colleges…. This indoctrination can start as early as elementary school, where students are encouraged or required to write about controversial issues…. More fundamentally, the indoctrination process habituates them to taking sides on weighty and complex issues after hearing just one side of those issues…. In colleges and universities, whole academic departments are devoted to particular prepackaged conclusions — whether on race, the environment or other subjects…. Few, if any, of these “studies” include conflicting visions and conflicting evidence, as educational rather than ideological criteria might require. (pp. 108-9)

While logic and evidence are ideal criteria for the work of intellectuals, there are many ways in which much of what is said and done by intellectuals has less to do with principles than with attitudes…. During the earlier [“progressive”] era [of the early 1900s], when farmers and workers were the special focus of solicitude, no one paid much attention to how what was done for the benefit of those groups might adversely affect minorities or others. Likewise, in a later era, little attention was paid by “progressive” intellectuals to how affirmative action for minorities or women might adversely affect others. There is no principle that accounts for such collective mood swings. There are simply reasons du jour, much like the adolescent fads that are compulsive badges of identity for a time and afterwards considered passé…. (pp. 110-12)

…Anyone who suggests that individuals — or worse yet, groups — are unequal is written off intellectually and denounced morally as biased and bigoted toward those considered less than equal. Yet the empirical case for equality ranges from feeble to non-existent…. Does anyone seriously believe that whites in general play professional basketball as well as blacks? [For readers new to Sowell: He is black.] How then can one explain the predominance of blacks in this lucrative occupation, which offers fame as well as fortune? For most of the period of black predominance in professional basketball, the owners of the teams have all been white, as have most of the coaches. Then by what mechanism could blacks have contrived to deny access to professional basketball to whites of equal ability in that sport? (p. 114)

Thus armed against the essential fallacies of left-wing intellectualism, the reader is treated to dissections of left-wing error with respect to economics (Chapter 3), the media and academia (Chapter 5), the law (Chapter 6), and war (Chapters 7 and 8).

THE LEFT AND ECONOMICS

Chapter 5 (“Intellectuals and Economics”) is a sustained litany of the left’s obdurate insistence on the truth of economic fallacies. If there were a Nobel Prize for Economic Illiteracy, it would be awarded to left-wing academics (some of them economists) and pundits, as a group.

One of the left’s favorite preoccupations is “income distribution”:

Although such discussions have been phrased in terms of people, the actual empirical evidence cited has been about what has been happening over time in statistical categories — and that turns out to be the direct opposite of what has happened over time to flesh-and-blood human beings…. [I]n terms of people, the incomes of those particular taxpayers who were in the bottom 20 percent in income in 1996 rose 91 percent by 2005, while the incomes of those particular taxpeayers who were in the top 20 percent in 1996 rose by only 10 percent by 2005 — and those in the top 5 percent and top one percent actually declined. (p. 37)

The left’s systematic misunderstanding of economics rises to astounding heights on many other issues:

High interest rates — “immoral,” even though they reflect the risk of lending to borrowers who are likely to default.

Capitalism — “exploitative,” even though it has brought workers to much higher standards of living than under socialism and communism.

Competition — “chaotic,” because shallow thinkers cannot conceive of progress without central planning and control (though they are ready enough to concede man’s superior mental capacity to the chaotic thing known as evolution).

Government intervention — “essential and beneficial,” despite generations of evidence to the contrary (which is ignored by wishful thinkers on the left).

Business — “economically dominant,” despite the rise and fall of many a business empire, and the fact that business is at the mercy of consumers, not the other way around. (See “capitalism” and “competition.”)

Recessions and depressions — “the result of capitalist excesses,” even though — normal business cycles aside, government intervention (so cherished by the left) has caused or exacerbated several recessions (including the present one) and the Great Depression.

(In the foregoing list, I have violated the letter, but not the spirit, of Sowell’s commentary on economic subjects.)

THE LEFT, THE MEDIA, AND ACADEMIA

The title of Chapter 5 is “Optional Reality in the Media and Academia.” The subtitle of the entire book could well have been “The Left and Optional Reality,” for in Chapter 5 and elsewhere Sowell exposes leftism and left-wing intellectuals as unconnected with reality. There is a preferred leftist version of the world — which changes from time to time and drags devoted leftists in its wake. From that preferred vision, leftists concoct their view of reality.

As Sowell reminds us in Chapter 5, the left’s concocted view of reality has included:

air-brushing the brutality of totalitarian regimes then being held up as leftist ideals (e.g. the USSR, Communist China, Cuba)

suppressing data that would show affirmative action to be counterproductive

depicting gun ownership as an unmitigated evil

trying to pin poverty among blacks on “racism,” when it predominates among the families of single, black mothers who have been lured into a cycle of dependency on welfare

portraying homosexuals as “victims,” except when they happen to be priest of the despised Catholic religion

giving publicity and credibility to trumped-up charges of rape and arson, when the victims are black or the alleged perpetrators are “privileged” whites

exaggerating the incidence of poverty in the United States

demonizing the left’s enemies by attributing to them evil deeds that they didn’t commit

coining euphemisms to promote pet causes (e.g., bums as homeless persons, swamps as wetlands, trolleys as light rail, liberalism as progressivism)

justifying all of the foregoing (and more) on the ground that truth is subjective

portraying Americans as barbaric, in the face of true barbarism among cultures currently in favor with leftists

exaggerating the importance of isolated events, for the sake of promoting the left’s agenda, while ignoring the great advances that have resulted from the hum-drum, daily work of millions of “average” Americans.

The point of all of this deception and self-deception is simple and straightforward: it is to make the case (first to oneself and then to the public) for the left’s vision of how the world should be run. In the left’s Alice-in-Wonderland world of reality, the vision precedes and shapes the facts, not the other way around.

THE LEFT AND THE LAW

Nowhere is the left’s upside-down world more evident than in the development and application of law, which is the subject of Chapter 6 (“Intellectuals and the Law”). As Sowell observes,

There can be no dependable framework of law where judges are free to impose as law their own individual notions of what is fair, compassionate or in accord with social justice. Whatever the merits or demerits of particular judges’ conceptions of these terms, they cannot be known in advance to others, or uniform from one judge to another, so that they re not law in the full sense of rules known in advance to those subject to those rules….

By the second half of the twentieth century, the view of law as something to be deliberately shaped according to the spirit of the times, as interpreted by intellectual elites, became more common in the leading law schools and among judges. Professor Ronald Dworkin of Oxford University epitomized this approach when he dismissed the systemic evolution of the law as a “silly faith,” — systemic processes being equated with chaos, as they have been among those who promoted central economic planning rather than the systemic interactions of markets. In both cases, the preference has been for an elite to impose its vision, overriding if necessary the views of the masses of their fellow citizens…. (pp. 157-160)

The left’s approach to the law is, in a word, rationalistic. That is, it would uproot tradition — which embodies the wisdom of experience — simply because it is tradition, and replace it with reductionist constructs that have been tested only in the minds of left-wing intellectuals. The left’s insight into human nature, and all that it entails, is profoundly shallow, to coin an apt oxymoron.

Sowell documents many of the ways in which the left has tortured the Constitution, so that it no longer serves its intended, minimalist role of preserving the liberty that had been won by the War of Independence. The story of how the Constitution — the supreme law of the land — became, in the hands of the left, a weapon in their war against liberty is too depressing (and long) to recount in detail. I will say, simply, that Sowell has the story down pat:

disregard for the original meaning of the Constitution (and, thus, disregard for the rule of law)

judicial interpretation of the Constitution in ways intended to reach outcomes favored by the left, even when those outcomes clearly ran contrary to the letter and spirit of the Constitution

the expansion of the power of the federal government, in the service of those outcomes, to a point where there is nothing beyond its dictatorial reach, and no one is secure in the right to the peaceful enjoyment of life, liberty, and property.

It is not only that government now enjoys unlimited reach, but that it has failed in its duty to curb the reach of the predators among us:

As noted in Chapter 2, a retired New York police commissioner who tried to tell a gathering of judges of the dangerous potential of some of their rulings was literally laughed at by the judges and lawyers present. In short, theory trumped experience….

[A]fter many years of rising crime rates had built up sufficient public outrage to force a change in policy, rates of imprisonment rose — and crime rates began falling for the first time in years. [Leftist intellectuals] lamented the rising prison population in the country and, when they acknowledged the declining crime rate at all, confessed themselves baffled by it, as if it were a strange coincidence that crime was declining as more criminals were taken off the streets….

In light of the fact that a wholly disproportionate amount of crime is committed by a relatively small segment of the population, it is hardly surprising that putting a small fraction of the total population behind bars has led to substantial reductions in the crime rate….

…The very mention of “Victorian” ideas about society in general, or crime control in particular, is virtually guaranteed to evoke a sneer from the intelligentsia. The fact that the Victorian era was one of a decades-long decline in alcoholism, crime and social pathology in general … carries virtually no weight among the intelligentsia, and such facts remain largely unknown among those in the general public who depend on either the media or academia for information.

Thus are the wages of leftist idealism and the left’s rationalistic dismissal of traditional ways and mores.

THE LEFT AND WAR

Sowell rolls out the heavy guns in Chapter 7 (“Intellectuals and War”) and Chapter 8 (“Intellectuals and War: Repeating History”). A good way to summarize the lessons of these chapters is to say that the left’s attitudes toward war resemble the ebbing and flowing of an emotional tide. War is good, in the abstract, when it is a distant memory and the one in the offing presents an opportunity to “do good” — “the war to end all war,” and all that.

Then comes a war and its aftermath, both of which are far messier than intellectuals had expected them to be, given that their minds run to abstraction. A reflexive anti-war posture then sets in, and becomes a sign of membership in the leftist coalition,much as a fraternity pin dangling from a watch chain used to be a sign of membership in this or that exclusive circle. Given the left’s dominance in the various mass media, anti-war propaganda soon dominates and colors the public’s view of war.

Anti-war sentiment — inflamed by the left — might have kept the U.S. out of WWII, with disastrous results, had it not been for the Hitler’s decision to attack the USSR and Japan’s miscalculated attack on Pear Harbor. The former event was more important to left than the latter, which caused non-intellectual isolationists to awaken from their slumber.

A generation later, anti-war propaganda disguised as journalism helped to snatch defeat from the jaws of victory in Vietnam. What was shaping up as a successful military campaign collapsed under the weight of the media’s overwrought and erroneous depiction of the Tet offensive as a Vietcong victory, the bombing of North Vietnam as “barbaric” (where the Tet offensive was given a “heroic cast), and the deaths of American soldiers as somehow “in vain, ” though many more deaths a generation earlier had not been in vain. (What a difference there was between Edward R. Murrow and Walter Cronkite and his sycophants.)

Were it not for the determined leadership of Ronald Reagan, the left’s anti-war and anti-preparedness rhetoric — combined with a generous dose of fear-mongering — would have derailed the defense buildup in the 1980s, to which the collapse of the Soviet Union should be attributed. The left, of course, refuses to go along with the truth, preferring instead to credit the feckless Mikhail Gorbachev.

Only the 9/11 attacks helped to reverse the Clinton defense build-down of the 1990s. It has often been said, and said truly, that Clinton balanced the budget on the back of defense. But the 9/11 attacks might not have occurred had it not been for the “wall” of separation between foreign intelligence and domestic law-enforcement that was erected and maintained under Clinton’s Justice Department.

Only the determined leadership of George W. Bush (say whatever else you want to about him) brought about a reversal of fortune in the Iraq war, over the vocal and obstructive voices of the left — among which one must number the present occupant of the White House.

Then there is the constant campaign of leaks — originated through leftist media outlets — that compromise defense plans, intelligence operations, and anti-terrorist activities. That campaign meshes well with the left’s resolute determination to treat terrorists as criminal suspects, even when they are able to evade civilian justice because the evidence against them is too sensitive to be divulged in civilian courts.

Members of the armed forces are useful to the media mainly as a weapon with which to beat the anti-war, anti-defense drum. Aside from the occasional token remembrance of their sacrifices, they are mainly portrayed by the media as “victims” (because of war wounds), suicidal (though less so than the population at large), and violent (though less so than civilians of the same demographic group).

The beat goes on, relentlessly. In the meantime, America’s enemies and potential enemies take heart.

Americans now face a far more serious budget-balancing exercise, as the nation’s tax-payers face the looming mountain of debt arising from the accrual of “commitments,” past and present known as Social Security, Medicare, Medicaid, and their expansion through CHIP, the Medicare prescription drug program, and Obamacare. Instead of confronting the real problem, politicians will duck it — for a while — by cutting other programs and raising taxes. Defense will carry a disproportionate share of the burden.

Will the U.S. be prepared for the next Pearl Harbor, the one that is far more devastating than the 9/11 attacks? In light of history and the way in which politics is played, the answer is “no.” And the next time, the U.S. will not have months and years in which to mobilize for a counter-attack. The next time, the enemy — whoever it is — will strike directly at America’s energy, telecommunications, and transportation networks with devastating blows that cripple the economy and spread fear and chaos throughout the land. (Here, I should remind the left that a sudden defeat would deprive its members of the opportunity to do what they do well when their leaders signal approval of a war: writing propaganda pieces for the home front, making propaganda films (often thinly disguised as entertainment), and commandeering the economy to plan wartime production, set price controls, and establishing ration quotas.)

Shouldn’t the nation be preparing assiduously against such a contingency, and spending what it takes to prevent it, to work around it, and to recover from it quickly? You would think so, but — thanks largely to the left-wing agenda of bread and circuses — the necessary steps will not be taken. And the left will be out in front of the opposition to preparedness, shouting that the nation cannot afford more defense spending when it faces critical social “obligations.”

On that note, I close this portion of the review with an apt quotation that I am fond of deploying:

It is customary in democratic countries to deplore expenditure on armaments as conflicting with the requirements of the social services. There is a tendency to forget that the most important social service that a government can do for its people is to keep them alive and free. (Marshall of the Royal Air Force Sir John Cotesworth Slessor, Strategy for the West, p. 75)

BAD IDEAS HAVE BAD CONSEQUENCES

The title of this final portion of a long review sums up the thesis of Intellectuals and Society. Sowell’s eponymous concluding Chapter 9 is not consistently on target, but it has its moments; for example:

The general public contributes to the income of intellectuals in a variety of ways involuntarily as taxpayers who support schools, colleges, and various other institutions and programs subsidizing intellectual and artistic endeavors. Other occupations requiring great mental ability — engineers, for example — have a vast spontaneous market for their end products…. But that is seldom true of people whose end products are ideas. There is neither a large nor a prominent role for them to play in society, unless they create it for themselves. (pp. 286-7)

*     *     *

While the British public did not follow the specific prescriptions of Bertrand Russell to disband British military forces on the eve of the Second World War, that is very different from saying that the steady drumbeat of anti-military preparedness rhetoric among the intelligentsia in general did not imped the buildup of a military deterrence or defense to offset Hitler’s rearming of Germany (p. 288)

In international issues of war and peace, the intelligentsia often say that war should be “a last resort.”… War should of course be “a last resort” — but last in terms of preference, rather than last in the sense of hoping against hope while dangers and provocations accumulate unanswered, while wishful thinking or illusory agreements substitute for serious military preparedness — or, if necessary, military action. As Franklin D. Roosevelt said in 1941, “if you hold your fire until you see the whites of his eyes, you will never know what hit you.” The repeated irresolution of France during the 1930s, and on into the period known as the “phony war” that ended in its sudden collapse in 1940, gave the world a painful example of how caution can be carried to the point where it becomes dangerous (pp. 289-90)

*     *     *

The period from the 1960s to the 1980s was perhaps the high tide of the influence of the intelligentsia in the United State. Though the ideas of the intelligentsia still remain the prevailing ideas, their overwhelming dominance ideologically has been reduced somewhat by counter-attacks from various quarters….

Nevertheless, any announcement of the demise of the [leftist intellectualism] would be very premature, if not sheer wishful thinking, in view of [its] continuing dominance … in the educational system, television and in motion pictures that deal with social or political issues. In short, the intellectuals’ vision of the world — as it is and as it should be — remains the dominant vision. Not since the days of the divine rights of kings has there been such a presumption of a right to direct others and constrain their decisions, largely through expanded powers of government. Everything from economic central planning to environmentalism epitomizes the belief that third parties know best and should be empowered to over-ride the decisions of others. This includes preventing children from growing up with the values taught them by their parent if more “advanced” values are preferred by those who teach in the schools and colleges. (pp. 291-92)

*     *     *

Unlike engineers, physicians, or scientists, the intelligentsia face no serious constraint or sanction based on empirical verification. NOne bould be sued for malpractice, for example, for having contributed to the hysteria over the insecticide DDT, which led to its banning in many countries around the world, costing the lives of literally millions of people through a resurgence of malaria. (pp. 296-7)

*     *     *

One of the things intellectuals have been doing for a long time is loosening the bonds that hold a society together. They have sought to replace the groups into which people have sorted themselves with groupings created and imposed by the intelligentsia. Ties of family, religion, and patriotism, for example, hav long been treated as suspect or detrimental by the intelligentsia, and new ties that intellectuals have created, such as class — and more recently “gender” — have been projected as either more real or more important. (p. 303)

*     *     *

Under the influence of the intelligentsia, we have become a society that rewards people with admiration for violating its own norms and for fragmenting that society into jarring segments. In addition to explicit denigrations of their own society for its history or current shortcomings, intellectuals often set up standards for their society which no society of human beings has ever met or is ever likely to meet.

Calling those standards “social justice” enables intellectuals to engage in endless complaints about the particular ways in which society fails to meet their arbitrary criteria, along with a parade of groups entitled to a sense of grievance, exemplified in the “race, class and gender” formula…. (p. 305)

I remind you that Sowell (and I) are, in the main, talking about the left — especially its elites. These are the so-called intellectuals and technocrats who dominate the media, academia, left-wing think tanks, and the upper layers of government bureaucracies. The smugness, sameness, and other-worldliness of their views is depressingly predictable.

The left advances its agenda in many ways, for example, by demonizing its opponents as “mean” and even “fascistic” (look in the mirror, bub), appealing to envy (stuck on “soak the rich,” with the connivance of some of the guilt-ridden “rich”), sanctifying an ever-growing list of “victimized” groups (various protected “minorities”), and taking a slice at a time (e.g., Social Security set the stage for Medicare which set it for Obamacare).

The left’s essential agenda is the repudiation of ordered liberty of the kind that arises from evolved social norms, and the replacement of that liberty by sugar-coated oppression. The bread and circuses of imperial Rome have nothing on Social Security, Medicaid, Medicare, Obamacare, and the many other forms of personal and corporate welfare that are draining America of its wealth and élan. All of that “welfare” has been bought at the price of economic and social liberty (which are indivisible).

Leftists like to say that there is a difference between opposition and disloyalty. But, in the case of the left, opposition arises from a fundamental kind of disloyalty. For, at bottom, the left pursues its agenda because it hates the idea of what America used to stand for: liberty with responsibility, strength against foreign and domestic enemies.

Most leftists are simply shallow-minded trend-followers, who believe in the power of government to do things that are “good,” “fair,” or “compassionate,” with no regard for the costs and consequences of those things. Shallow leftists know not what they do. But they do it. And their shallowness does not excuse them for having been accessories to the diminution of America. A rabid dog may not know that it is rabid, but its bite is no less lethal for that.

The leaders of the left — the office-holders, pundits, and intelligentsia — usually pay lip-service to “goodness,” “fairness,” and “compassion.” But their lip-service fails to conceal their brutal betrayal of liberty. Their subtle and not-so-subtle treason is despicable almost beyond words. But not quite…

The Unconstitutionality of the Individual Mandate

There are sophisticated arguments for unlimited governmental interference in the affairs of citizens. By sophisticated, I mean that they seem, superficially, to resort to the text and meaning of the Constitution. Here is a good example:

How Do We Know What is An “Activity” for Commerce Clause Purposes?
Orin Kerr • December 2, 2010 6:14 pm

I appreciate Ilya [Somin]’s post below on the meaning of “activity” in Commerce Clause jurisprudence, and I wanted to add two brief observations:

1) If I understand Ilya’s argument, he begins with an assumption as to how much power Congress has, and he then reasons backwards to infer the meaning of “activity” in order to make that assumption correct. A conscious decision not to do something cannot be an “activity,” the thinking goes, because that would give Congress more power than a fair reading of the Commerce Clause would permit. Perhaps, but it seems to me that this argument largely assumes its conclusion. It uses the fact that Congress must have significant limits on its power to show that “activity” has a narrow meaning, which then is used to prove that Congress has significant limits on its power that the individual mandate exceeds. If you start with a different assumption, however, the argument doesn’t work. For example, if you start with the assumption about the scope of the Commerce Clause that Justice Kennedy articulates in his Lopez concurrence, then you can get a different meaning of “activity.”

I suspect some readers will object to this argument on the ground that they share Ilya’s assumption: Because Ilya’s assumption is correct, the argument works. That’s a fair point within the group that shares the assumption. The problem is that others don’t share the assumption, and starting with it won’t go very far in persuading them. That doesn’t necessarily mean Ilya is right or wrong. But I do think it means that this argument is likely not have a lot of force among the people not already inclined to agree with it.

2) More broadly, I still think that the easiest path to resolving the constitutionality of the individual mandate is that it is a “necessary and proper” means of trying to regulate the massive interstate market in health care that is around 1/7th of the United States economy. As I have blogged before, I think that’s a very strong argument based on Supreme Court caselaw on the meaning of “necessary and proper.” I realize that Ilya thinks that the Supreme Court precedents on the meaning of “necessary and proper” have not actually addressed what is “proper,” and thus that there is a still yet unarticulated limitation on the scope of federal power that remains to be developed — and that should be read as adding a level of scrutiny that the individual mandate fails to satisfy. But I don’t think the cases can be fairly read in that way, so it seems to me that the necessary and proper clause caselaw leads to the conclusion that the mandate should be upheld without getting into what counts as an “activity.”

Somin has replied to Kerr, who has replied to Somin, who has replied to Kerr, who has replied to Somin, etc. Their exchange could go on forever, so I will strike out on my own and leave Somin and Kerr to fight it out between themselves. In what follows, I use Kerr as a convenient whipping-boy, even though (in my understanding) he is only representing the defenses that others make of Obamacare and the individual mandate.

For my part, I have three questions about Kerr’s glib defense of the individual mandate: First, what does the size of the “market” for “health care” — an amorphous entity — have to do with the power of Congress to regulate it? Second, if “health care,” as an amorphous entity, is not a proper subject of regulation, then how can the individual mandate be a “necessary and proper” enactment? If Congress has always had the constitutional authority to regulate an industry (or something that loosely resembles one) — which it must if the Constitution is to be dispositive — why did it wait so long to exercise that authority (over railroads), in the Interstate Commerce Act of 1887?

With regard to the first question, Kerr seems to suggest that the fraction of GDP spent on “health care” justifies federal supervision of it. The estimates of GDP and its components given in Table 1.5.5 of the National Income Account tables (available here), indicate that health care accounts for 1/9th (not 1/7th) of GDP. The lower value is still a large share of GDP, but there is nothing in the Constitution that gives Congress the power to regulate loosely defined segments of the economy just because they account for more than X percent of GDP.

The Constitution simply gives Congress the power to regulate interstate commerce. And not all activities comprised in “health care” occur in transactions that are properly considered interstate commerce. In fact, significant portions of it (e.g., the manufacture of products used in health care, the use of those products by health-care providers, and the personal services rendered by health-care providers) clearly occur outside the activities properly understood as interstate commerce: the sale and transmission of goods (tangible and intangible) across State lines.

With regard to the second question, it follows that the mandate cannot be “necessary and proper” if Congress lacks the authority to regulate “the massive interstate market in health care,” in the first place. On that point, I refer you to the Constitution. Here are the relevant portions, the “Commerce Clause” and the “Necessary and Proper Clause”:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…. (Article I, Section 8, third clause, emphasis added)

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Article I, Section 8, final clause, emphasis added)

To dispose of the third question, the Interstate Commerce Act of 1887, and much that has followed in its vein, is the culmination of raw politics and flawed interpretations of the Constitution. In 1887, Congress responded to public pressure (fomented, no doubt by competing interests and do-gooders) for action to quell the supposedly monopolistic practices of railroads. No principle of constitutional interpretation that takes the Constitution as something more than window-dressing can claim public pressure as a source of constitutional authority, unless public pressure leads to the adoption of a constitutional amendment in accordance with Article V. The many subsequent aggrandizements of Congress’s regulatory power are owed to the excesses of the “Progressive Era,” the “New Deal,” the “Great Society,” and the general failure of the Supreme Court to check those excesses.

Which brings us back to the regulation of “health care.” If the power of Congress to regulate “health care” cannot be found in its power to regulate interstate commerce, where can it be found? Nowhere in the Constitution. And if such a power cannot be found in the Constitution, then there can be no “necessary and proper” law that requires individuals to buy health insurance — or that authorizes Medicare, Medicaid, or their extension through Obamacare.

The defenders of Obamacare and the individual mandate would argue that it is “necessary and proper” to regulate activities (commercial or not) that are tangentially related to the portion of “health care” that is comprised in interstate commerce. That is so, in their view, because otherwise the effort to regulate the portion comprised in interstate commerce would fail to have the desired effect. In other words, they would regulate everything that can be labeled “health care,” and everything beyond that which threatens to undermine the intended regulatory outcome.

In so many words, the defenders of Obamacare and the individual mandate, like many others before them, want Congress to have the power to regulate anything and everything that they want Congress to regulate. This is nothing new under the sun, or the dome of the Capitol. Through the concatenation of the many regulatory regimes that have been granted similarly sweeping powers, Congress works its will on Americans, without regard for their liberty and property. Surely, that is not what the Framers intended when they vested in Congress specific powers — to the exclusion of powers not enumerated.

And so, the real issue — and the main subject of this post — comes down to this: Does Congress’s power to regulate interstate commerce extend to “health care” generally, just because some aspects of it involve interstate commerce? In particular, can Congress constitutionally impose the individual mandate under the rubric of the Commerce Clause or the Necessary and Proper Clause?

To answer that question, I examined the relevant writings of the Framers and two early justices of the U.S. Supreme Court, whose writings are taken as authoritative. (Relevant excerpts are below the fold.) I compared what I found in those writings with the opinions of Justice Clarence Thomas in two salient cases: United States v. Lopez (1995) and Gonzalez v. Raich (2005). I focused on Justice Thomas because he has been the most reliable interpreter of the Constitution’s original meaning since he joined the Court in 1991. It is evident, even to this lay (but experienced) reader of legal documents, that Justice Thomas accurately represents the original meaning of the Constitution with respect to Congress’s regulatory power over interstate commerce. (If you’re anxious to get to the bottom line, scroll past the long excerpts of Thomas’s opinions to the concluding paragraphs of this post.)

Here are relevant excerpts of Thomas’s concurring opinion in United States v. Lopez. In that case, a 5-4 majority held that the Gun Free School Zones Act of 1990, which forbids “any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone,” exceeded Congress’s Commerce Clause authority:

The Court today properly concludes that the Commerce Clause does not grant Congress the authority to prohibit gun possession within 1,000 feet of a school, as it attempted to do in the Gun Free School Zones Act of 1990…. Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause….

We have said that Congress may regulate not only “Commerce . . . among the several states,” … but also anything that has a “substantial effect” on such commerce. This test, if taken to its logical extreme, would give Congress a “police power” over all aspects of American life….

At the time the original Constitution was ratified, “commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes…. In fact, when Federalists and Anti Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably….

As one would expect, the term “commerce” was used in contradistinction to productive activities such as manufacturing and agriculture. Alexander Hamilton, for example, repeatedly treated commerce, agriculture, and manufacturing as three separate endeavors….

Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems. For example, one cannot replace “commerce” with a different type of enterprise, such as manufacturing. When a manufacturer produces a car, assembly cannot take place “with a foreign nation” or “with the Indian Tribes.” Parts may come from different States or other nations and hence may have been in the flow of commerce at one time, but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles….

The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. The Commerce Clause does not state that Congress may “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In contrast, the Constitution itself temporarily prohibited amendments that would “affect” Congress’ lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation…. Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” clause had that been their objective.

In addition to its powers under the Commerce Clause, Congress has the authority to enact such laws as are “necessary and proper” to carry into execution its power to regulate commerce among the several States…. But on this Court’s understanding of congressional power under these two Clauses, many of Congress’ other enumerated powers under Art. I, §8 are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6. Likewise, Congress would not need the separate authority to establish post-offices and post-roads, cl. 7, or to grant patents and copyrights, cl. 8, or to “punish Piracies and Felonies committed on the high Seas,” cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13, for fewer people would engage in commercial shipping if they thought that a foreign power could expropriate their property with ease. Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify that Congress can regulate international trade and commerce with the Indians. As the Framers surely understood, these other branches of trade substantially affect interstate commerce.

Put simply, much if not all of Art. I, §8 (including portions of the Commerce Clause itself) would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of §8 superfluous simply cannot be correct. Yet this Court’s Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have accorded Congress has swallowed Art. I, §8.

Indeed, if a “substantial effects” test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that “substantially affect” the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of §8 all mutually overlap, something we can assume the Founding Fathers never intended.

Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the “substantial effects” test should be reexamined.

The exchanges during the ratification campaign reveal the relatively limited reach of the Commerce Clause and of federal power generally. The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government. Such affairs would continue to be under the exclusive control of the States….

Yet, despite being well aware that agriculture, manufacturing, and other matters substantially affected commerce, the founding generation did not cede authority over all these activities to Congress. Hamilton, for instance, acknowledged that the Federal Government could not regulate agriculture and like concerns:

“The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things in short which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.” The Federalist No. 17, at 106.

In the unlikely event that the Federal Government would attempt to exercise authority over such matters, its effort “would be as troublesome as it would be nugatory.” Ibid. [n.4]

The comments of Hamilton and others about federal power reflected the well known truth that the new Government would have only the limited and enumerated powers found in the Constitution…. Even before the passage of the Tenth Amendment, it was apparent that Congress would possess only those powers “herein granted” by the rest of the Constitution….

Where the Constitution was meant to grant federal authority over an activity substantially affecting interstate commerce, the Constitution contains an enumerated power over that particular activity. Indeed, the Framers knew that many of the other enumerated powers in §8 dealt with matters that substantially affected interstate commerce. Madison, for instance, spoke of the bankruptcy power as being “intimately connected with the regulation of commerce.” The Federalist No. 42, at 287. Likewise, Hamilton urged that “[i]f we mean to be a commercial people or even to be secure on our Atlantic side, we must endeavour as soon as possible to have a navy.” Id., No. 24, at 157 (A. Hamilton).

In short, the Founding Fathers were well aware of what the principal dissent calls ” `economic . . . realities.’ “… Even though the boundary between commerce and other matters may ignore “economic reality” and thus seem arbitrary or artificial to some, we must nevertheless respect a constitutional line that does not grant Congress power over all that substantially affects interstate commerce.

If the principal dissent’s understanding of our early case law were correct, there might be some reason to doubt this view of the original understanding of the Constitution. According to that dissent, Chief Justice Marshall’s opinion in Gibbons v. Ogden, … established that Congress may control all local activities that “significantly affect interstate commerce,”… And, “with the exception of one wrong turn subsequently corrected,” this has been the “traditiona[l]” method of interpreting the Commerce Clause….

In my view, the dissent is wrong about the holding and reasoning of Gibbons. Because this error leads the dissent to characterize the first 150 years of this Court’s case law as a “wrong turn,” I feel compelled to put the last 50 years in proper perspective.

In Gibbons, the Court examined whether a federal law that licensed ships to engage in the “coasting trade” pre-empted a New York law granting a 30 year monopoly to Robert Livingston and Robert Fulton to navigate the State’s waterways by steamship. In concluding that it did, the Court noted that Congress could regulate “navigation” because “[a]ll America . . . has uniformly understood, the word `commerce,’ to comprehend navigation. It was so understood, and must have been so understood, when the constitution was framed.”… The Court also observed that federal power over commerce “among the several States” meant that Congress could regulate commerce conducted partly within a State. Because a portion of interstate commerce and foreign commerce would almost always take place within one or more States, federal power over interstate and foreign commerce necessarily would extend into the States….

At the same time, the Court took great pains to make clear that Congress could not regulate commerce “which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.”… Moreover, while suggesting that the Constitution might not permit States to regulate interstate or foreign commerce, the Court observed that “[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State” were but a small part “of that immense mass of legislation . . . not surrendered to a general government.”… From an early moment, the Court rejected the notion that Congress can regulate everything that affects interstate commerce. That the internal commerce of the States and the numerous state inspection, quarantine, and health laws had substantial effects on interstate commerce cannot be doubted. Nevertheless, they were not “surrendered to the general government.”

Of course, the principal dissent is not the first to misconstrue Gibbons. For instance, the Court has stated that Gibbons “described the federal commerce power with a breadth never yet exceeded.”… I believe that this misreading stems from two statements in Gibbons.

First, the Court made the uncontroversial claim that federal power does not encompass “commerce” that “does not extend to or affect other States.”… From this statement, the principal dissent infers that whenever an activity affects interstate commerce, it necessarily follows that Congress can regulate such activities. Of course, Chief Justice Marshall said no such thing and the inference the dissent makes cannot be drawn.

There is a much better interpretation of the “affect[s]” language: because the Court had earlier noted that the commerce power did not extend to wholly intrastate commerce, the Court was acknowledging that although the line between intrastate and interstate/foreign commerce would be difficult to draw, federal authority could not be construed to cover purely intrastate commerce. Commerce that did not affect another State could never be said to be commerce “among the several States.”

But even if one were to adopt the dissent’s reading, the “affect[s]” language, at most, permits Congress to regulate only intrastate commerce that substantially affects interstate and foreign commerce. There is no reason to believe that Chief Justice Marshall was asserting that Congress could regulate all activities that affect interstate commerce…

The second source of confusion stems from the Court’s praise for the Constitution’s division of power between the States and the Federal Government:

“The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.”…

In this passage, the Court merely was making the well understood point that the Constitution commits matters of “national” concern to Congress and leaves “local” matters to the States. The Court was not saying that whatever Congress believes is a national matter becomes an object of federal control. The matters of national concern are enumerated in the Constitution: war, taxes, patents, and copyrights, uniform rules of naturalization and bankruptcy, types of commerce, and so on…. Gibbons‘ emphatic statements that Congress could not regulate many matters that affect commerce confirm that the Court did not read the Commerce Clause as granting Congress control over matters that “affect the States generally.” Gibbons simply cannot be construed as the principal dissent would have it.

I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the substantial effects test is but an innovation of the 20th century.

Even before Gibbons, Chief Justice Marshall, writing for the Court in Cohens v. Virginia, … noted that Congress had “no general right to punish murder committed within any of the States,” … and that it was “clear that congress cannot punish felonies generally,”… The Court’s only qualification was that Congress could enact such laws for places where it enjoyed plenary powers–for instance, over the District of Columbia…. Thus, whatever effect ordinary murders, or robbery, or gun possession might have on interstate commerce (or on any other subject of federal concern) was irrelevant to the question of congressional power.

United States v. Dewitt … marked the first time the Court struck down a federal law as exceeding the power conveyed by the Commerce Clause. In a two page opinion, the Court invalidated a nationwide law prohibiting all sales of naphtha and illuminating oils. In so doing, the Court remarked that the Commerce Clause “has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States.”… The law in question was “plainly a regulation of police,” which could have constitutional application only where Congress had exclusive authority, such as the territories….

In United States v. E. C. Knight Co., … this Court held that mere attempts to monopolize the manufacture of sugar could not be regulated pursuant to the Commerce Clause. Raising echoes of the discussions of the Framers regarding the intimate relationship between commerce and manufacturing, the Court declared that “[c]ommerce succeeds to manufacture, and is not a part of it.”… The Court also approvingly quoted from Kidd v. Pearson … :

” `No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce . . . . If it be held that the term [commerce] includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested . . . with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining–in short, every branch of human industry.’ “…

If federal power extended to these types of production “comparatively little of business operations and affairs would be left for state control.”… Whether or not manufacturing, agriculture, or other matters substantially affected interstate commerce was irrelevant.

As recently as 1936, the Court continued to insist that the Commerce Clause did not reach the wholly internal business of the States…. The Federal Government simply could not reach such subjects regardless of their effects on interstate commerce.

These cases all establish a simple point: from the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause. Moreover, there was no question that activities wholly separated from business, such as gun possession, were beyond the reach of the commerce power. If anything, the “wrong turn” was the Court’s dramatic departure in the 1930’s from a century and a half of precedent.

Apart from its recent vintage and its corresponding lack of any grounding in the original understanding of the Constitution, the substantial effects test suffers from the further flaw that it appears to grant Congress a police power over the Nation. When asked at oral argument if there were any limits to the Commerce Clause, the Government was at a loss for words…. Likewise, the principal dissent insists that there are limits, but it cannot muster even one example…. Indeed, the dissent implicitly concedes that its reading has no limits when it criticizes the Court for “threaten[ing] legal uncertainty in an area of law that . . . seemed reasonably well settled.”… The one advantage of the dissent’s standard is certainty: it is certain that under its analysis everything may be regulated under the guise of the Commerce Clause.

The substantial effects test suffers from this flaw, in part, because of its “aggregation principle.” Under so called “class of activities” statutes, Congress can regulate whole categories of activities that are not themselves either “interstate” or “commerce.” In applying the effects test, we ask whether the class of activities as a whole substantially affects interstate commerce, not whether any specific activity within the class has such effects when considered in isolation….

The aggregation principle is clever, but has no stopping point. Suppose all would agree that gun possession within 1,000 feet of a school does not substantially affect commerce, but that possession of weapons generally (knives, brass knuckles, nunchakus, etc.) does. Under our substantial effects doctrine, even though Congress cannot single out gun possession, it can prohibit weapon possession generally. But one always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce. Under our jurisprudence, if Congress passed an omnibus “substantially affects interstate commerce” statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional. Even though particular sections may govern only trivial activities, the statute in the aggregate regulates matters that substantially affect commerce.

This extended discussion of the original understanding and our first century and a half of case law does not necessarily require a wholesale abandonment of our more recent opinions. It simply reveals that our substantial effects test is far removed from both the Constitution and from our early case law and that the Court’s opinion should not be viewed as “radical” or another “wrong turn” that must be corrected in the future. The analysis also suggests that we ought to temper our Commerce Clause jurisprudence.

Unless the dissenting Justices are willing to repudiate our long held understanding of the limited nature of federal power, I would think that they too must be willing to reconsider the substantial effects test in a future case. If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause’s boundaries simply cannot be “defined” as being ” `commensurate with the national needs’ ” or self consciously intended to let the Federal Government ” `defend itself against economic forces that Congress decrees inimical or destructive of the national economy.’ “… Such a formulation of federal power is no test at all: it is a blank check.

At an appropriate juncture, I think we must modify our Commerce Clause jurisprudence. Today, it is easy enough to say that the Clause certainly does not empower Congress to ban gun possession within 1,000 feet of a school.

Thomas was in the minority in Gonzalez v. Raich, where a 6-3 majority held that Congress’s Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. Thomas’s dissent restates points he made in his opinion in United States v. Lopez, but delves further into the scope of the Necessary and Proper clause:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers….

Respondents’ local cultivation and consumption of marijuana is not “Commerce … among the several States.”… By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution’s limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents’ conduct, however, is not “necessary and proper for carrying into Execution” Congress’ restrictions on the interstate drug trade…. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents’ conduct….

The majority advances three reasons why the CSA is a legitimate exercise of Congress’ authority under the Commerce Clause: First, respondents’ conduct, taken in the aggregate, may substantially affect interstate commerce … ; second, regulation of respondents’ conduct is essential to regulating the interstate marijuana market, ante … ; and, third, regulation of respondents’ conduct is incidental to regulating the interstate marijuana market…. Justice O’Connor explains why the majority’s reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority’s justifications, however, suffer from even more fundamental flaws….

The majority’s treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce–any more than Congress may regulate activities that do not fall within, but that affect, the subjects of its other Article I powers…. Whatever additional latitude the Necessary and Proper Clause affords, … the question is whether Congress’ legislation is essential to the regulation of interstate commerce itself–not whether the legislation extends only to economic activities that substantially affect interstate commerce….

…This Court has never held that Congress can regulate noneconomic activity that substantially affects interstate commerce…. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the “ ‘the production, distribution, and consumption of commodities.’ ”… This carves out a vast swath of activities that are subject to federal regulation…. If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate “Commerce,” and respondents’ conduct does not qualify under any definition of that term. The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from “ ‘commerce,’ ” … to “commercial” and “economic” activity, … and finally to all “production, distribution, and consumption” of goods or services for which there is an “established … interstate market”…. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.

The majority’s rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively…. The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers…. Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce–not to mention a host of local activities, like mere drug possession, that are not commercial.

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “ ‘[t]he Constitution created a Federal Government of limited powers.’ ”… That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce….

The majority also inconsistently contends that regulating respondents’ conduct is both incidental and essential to a comprehensive legislative scheme…. [T]he majority further claims that, because the CSA covers a great deal of interstate commerce, it “is of no moment” if it also “ensnares some purely intrastate activity.”… So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause….

It is safe to say that a proper reading of the Constitution, as exemplified in the authoritative opinions excerpted above, yields no authority for Obamacare. That monstrosity — the official, Orwellian title of which is the Patient Protection and Affordable Care Act (PPACA) — attempts to reach an aggregation known as “health care,” without any differentiation between interstate commerce, intrastate commerce, and activities that are part of neither, namely, the choices of individuals with respect to health insurance.

It may be a valid exercise of Congress’s power to regulate actual interstate commerce that touches on the provision of health care. It is not a valid exercise to aggregate everything called “health care” and to regulate it as if it were all within the reach of Congress. When that happens, there is no room left — in “health care” nor, by extension, any other loose aggregation of activities — for State action or individual choice.

In sum, Obamacare is neither a valid regulation of interstate commerce nor necessary and proper to a valid regulation of interstate commerce. It is a governmental seizure of 1/9th of the economy. The individual mandate — which is a central feature of that seizure — is nothing more than coercion. It is no less peremptory than the military draft.

And thus has the power to regulate interstate commerce evolved from its original purposes — the protection of American industry in its infancy and the prevention of trade wars among the States — to an instrument of dictatorship. For that is what it is, regardless of the participation of the “people’s representatives.”

It is long past time for the Supreme Court to reverse the long string of Commerce Clause decisions through which the federal government has acquired and exercised dictatorial power. Otherwise, we might as well shred the Constitution, once and for all, and quit paying lip-service to it.

Continue reading “The Unconstitutionality of the Individual Mandate” →

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