Category: Constitution – Courts – Law – Justice

Fascism with a “Friendly” Face

This is the core meaning of fascism:

Fascism is a system in which the government leaves nominal ownership of the means of production in the hands of private individuals but exercises control by means of regulatory legislation and reaps most of the profit by means of heavy taxation. In effect, fascism is simply a more subtle form of government ownership than is socialism.

A fascistic government  — even a totalitarian one — will try to secure broad political support for itself. Scapegoating is a common technique for developing political support. Scapegoating, when successful, fosters the belief that the country’s economic and/or social problems — the ones that the fascistic regime promises to cure — are due to the actions of particular, identifiable groups of citizens. Another common technique is the suppression of dissent, which stifles critical commentary while imparting to the timid masses a lesson in the value of submissiveness to the regime.

Successful scapegoating serves two purposes. First, it turns public scrutiny away from the regime’s mistakes and misdeeds and toward the supposed misdeeds of the scapegoated groups. Second, scapegoating helps to build public support for the regime by identifying it as a force for good, as opposed to the scapegoated groups, which are painted as sources of evil.

Fascism, despite its prevailing image in the popular mind, need not come about through the efforts of black- or brown-shirted thugs. If you will re-read the opening definition of fascism, it should remind you of the present state of affairs in the United States, given that the federal government has assumed de facto control of two leading industries — financial services and automobile manufacturing — the first of which is central to the operations of America’s businesses.*

How did the United States get to this point? Through the “democratic” process, that’s how — without a shot, without a coup, without a foaming-at-the-mouth dictator. The citizens of the United States — enough of them, anyway — have, over the past eight decades, elected the members of Congress and the presidents (and, indirectly, their judicial appointees) who have brought us to our present state. The grinning FDR was a fascist; the smiling Obama is acting like one (see first footnote). Thus “Fascism with a ‘Friendly’ Face” (alternative title: “Bread and Circuses Redux“).

I now turn to the unfriendly face of fascism, that is, to scapegoating and the suppression of dissent. There was scapegoating a-plenty under FDR, as exemplified by his attacks on “economic royalists.” According to FDR, among many other rabble-rousers of the time, “the rich” were to blame for the Depression and were standing in the way of recovery. That FDR’s demonization of “the rich” and his schemes for centralizing power in Washington were the real obstacles to recovery is a fact that eluded his second-rate mind and which still eludes most Americans (even  a Nobel laureate). (For much more, you should buy and read FDR’s Folly: How Roosevelt and His New Deal Prolonged the Great Depression, which I own and have read critically. It’s repetitive and a somewhat dumbed-down, but generally on the mark.)

We are seeing, under Obama, a renewal of scapegoating. It is evident in his plans to soak “the rich,” which would (among other things) lead to income redistribution. As if the the recession could be cured by raising taxes on the very group that is most responsible for economic growth. As if very high incomes were the result of some kind of conspiracy and not symptomatic of a dynamic, growing economy. (For more about income inequality, see this, this, this, this, this, this, and this.) Scapegoating also is evident in Obama’s attack on hedge-fund managers who refused (how dare they!) to roll over and allow the holders of Chrysler bonds to suffer for the benefit of the UAW, to which Chrysler owes its (hoped for) demise. (One hedge-fund manager’s brisk and appropriate response to Obama’s attack is here.)

Then there is Obama’s decision to join the Left’s campaign to pin the “torturer” label on the Bush administration, thereby legitimating that campaign. We might yet witness the unprecedented spectacle of an incoming U.S. administration trying members of the previous administration for what amount to political “crimes” against Leftist sensibilities.

Obama’s ascendancy, though achieved by a fairly narrow popular-vote margin, has emboldened the Left (in and out of government) in other efforts to scapegoat conservatives and suppress conservative views; viz.:

  • this report from the Department of Homeland Security (especially the footnote on page 2) and related commentary (e.g., here, here, here, and here), all reminiscent of 1964, when Barry Goldwater was vilified (successfully) as an extremist because he stood against the concentration of power in Washington;
  • denunciations of the “tea party” movement (e.g. here and here);
  • efforts by universities and public officials to suppress dissent (e.g., here, here, here, and here), most notably Sen. Jay Rockefeller’s proposal to give the president authority to shut down the internet; and

Regarding the suppression of dissent, it is noteworthy that Obama’s has tagged Cass Sunstein (a Chicago crony) to head the Office of Information and Regulatory Affairs in the White House. (See this article for more about the likely direction of OIRA under Sunstein.) My biggest concern about Sunstein, who figures to be a strong influence on Obama, is his embrace of the oxymoronical thing known as “libertarian paternalism.” (For an exposition of its flaws, see this post and its predecessors, linked therein.)

“Libertarian paternalism” is nothing more than a dressed-up version of paternalism, in which the government is used to “nudge” people toward making the kinds of decisions that Sunstein and his ilk would make. That is to say, Sunstein (like too many other bright individuals) likes to believe that he knows what’s best for others. (That conceit is demolished in the posts mentioned at the end of the preceding paragraph and in these posts by an avowed utilitarian.)

“Libertarian paternalism” may seem innocuous, but there’s more to it than a bit of “nudging” (hah!) by the one-ton gorilla in the room (i.e., the federal government). Perhaps the most frightening item on Sunstein’s paternalistic agenda ties into Sen. Rockefeller’s proposal to give the president the power to shut down the internet — which amounts to the power to control the content of the internet. And make no mistake about it, Sunstein would like to control the content of the internet — for our own good, of course. I refer specifically to Sunstein’s “The Future of Free Speech,” in which he advances several policy proposals, including these:

4. . . . [T]he government might impose “must carry” rules on the most popular Websites, designed to ensure more exposure to substantive questions. Under such a program, viewers of especially popular sites would see an icon for sites that deal with substantive issues in a serious way. They would not be required to click on them. But it is reasonable to expect that many viewers would do so, if only to satisfy their curiosity. The result would be to create a kind of Internet sidewalk, promoting some of the purposes of the public forum doctrine. Ideally, those who create Websites might move in this direction on their own. If they do not, government should explore possibilities of imposing requirements of this kind, making sure that no program draws invidious lines in selecting the sites whose icons will be favoured. Perhaps a lottery system of some kind could be used to reduce this risk.

5. The government might impose “must carry” rules on highly partisan Websites, designed to ensure that viewers learn about sites containing opposing views. This policy would be designed to make it less likely for people to simply hear echoes of their own voices. Of course, many people would not click on the icons of sites whose views seem objectionable; but some people would, and in that sense the system would not operate so differently from general interest intermediaries and public forums. Here too the ideal situation would be voluntary action. But if this proves impossible, it is worth considering regulatory alternatives. [Emphasis added.]

A Left-libertarian defends Sunstein’s foray into thought control, concluding that

Sunstein once thought some profoundly dumb policies might be worth considering, but realized years ago he was wrong about that… The idea was a tentative, speculative suggestion he now condemns in pretty strong terms.

Alternatively, in the face of severe criticism of his immodest proposal, Sunstein merely went underground, to await an opportunity to revive his proposal. I somehow doubt that Sunstein, as a confirmed paternalist, truly abandoned it. The proposal certainly was not off-the-cuff, running to 11 longish web pages.  Now, judging by the bulleted list above, the time is right for a revival of Sunstein’s proposal. And there he is, heading the Office of Information and Regulatory Affairs. The powers of that office supposedly are constrained by the executive order that established it. But it is evident that the Obama adminstration isn’t bothered by legal niceties when it comes to the exercise of power. Only a few pen strokes stand between Obama and a new, sweeping executive order, the unconstitutionality of which would be of no import to our latter-day FDR.

Where will it all end? As I argue here, the United States already has descended into statism. The further descent into ingrained fascism is but a fine-tuning exercise for the vast, Left-wing alliance, which consists of public-school “educators,” liberal-arts academics, and their sycophantic students; Hollywood and New York celebrities and their hangers-on; “artists” and “intellectual workers” of most stripes; well-educated, upper-income, professionals who live in and around major metropolitan areas; and hordes of politicians (local, State, and national), who foster and benefit from the prejudices of the alliance. This broad alliance patronizes idealistic twenty-somethings, blacks, Latins, and labor-union members — the four groups from which its favored political candidates draw decisive support at the polls.

The Leftist alliance scorns America and its traditional (but largely abandoned) values of personal responsibility and respect for the persons and property of others. The alliance exalts, instead, the politics of entitlement and envy, of class, ethnic, racial, and gender conflict. As a result, the alliance has succeeded in demolishing the long-standing consensus that the main constitutional functions of the federal government are “to establish Justice, provide for the common defence,” and ensure the free movement of goods and persons among the States.**

Where will it all end? Unless we are roused from our Leftist idyll by some-one or some-thing, it will end in an Orwellian nightmare. The state will control our lives, in minute detail, from conception (and the prevention thereof) to death (and the means thereof).
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* For some views about our descent into fascism (even where it isn’t called that), see these posts of mine:
Things to Come
Reclaiming Liberty Throughout the Land
Are We All Fascists Now?

See  also these posts and articles by other writers:
Fundamentally Different
Obama the Planner
Obama: The Grand Strategy
The Death of Democratic Capitalism?
Tarred by TARP
Elizabeth Warren’s Holy Crusade
Pay Limits May Apply to Toxic-Asset Relief Program, Report Says
Environmentalists Are Funny. Right?
EPA’s Endangerment Finding
EPA Says Greenhouse Gases are Threat to Public

** The preamble to the Constitution also mentions “insur[ing] domestic Tranquillity,” “provid[ing] for the general Welfare,” and “secur[ing] the Blessings of Liberty to ourselves and our Posterity.” These injunctions — aside from a few specific, textual grants of power for dealing with insurrections — merely reflect the Framers’ hopes for the nation’s future under the auspices of the new Constitution.

Controlling the Beast

Professor Randy Barnett, a libertarian scholar of constitutional law, proposes a “federalism amendment” to the Constitution. As Barnett notes,

Article V [of the Constitution] provides that, “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

Here’s how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.

There’s always the chance (albeit a slim one) that Congress would allow a convention to go forward. Were that to happen, I would try to drum up support for my version of a new Constitution, which does all that Barnett wants to do with his proposed amendment — and a lot more.

Whither the Supreme Court?

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

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

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

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

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

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

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

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

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

Secession

Rick Perry, governor of Texas, has expressed sympathy for proponents of the secession of Texas from the United States. “Liberal” commentary to the contrary, current secessionist sentiment arises not from a desire to own slaves, or otherwise to deprive certain groups of their constitutional rights, but from righteous and rightful opposition to the hell-bent-for-fascism-regime now ascendant in Washington.

The question then arises whether Texas could secede peacefully, under the Constitution of the United States. An argument for secession can be found in the Treaty of Annexation between the people of Texas and the United States of America (1844). Article II of the treaty reads as follows:

The citizens of Texas shall be incorporated into the Union of the United States, maintained and protected in the free enjoyment of their liberty and property and admitted, as soon as may be consistent with the principles of the federal constitution, to the enjoyment of all the rights, privileges and immunities of citizens of the United States.

A case can be made (if not won) that the federal government has abridged the “rights, privileges and immunities of citizens of the United States,” including Texans, through various unconstitutional actions. (I will not attempt to detail those actions here, for they are legion. I have written about some of them in many of the posts listed here. Robert Levy and William Mellor have analyzed the most egregious unconstitutional actions of the U.S. Supreme Court in their book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.)

There is, moreover, a general case for secession as a constitutional act. I begin by referring to an anti-secessionist, one Timothy Sandefur of the blog Freespace. Sandefur — a lawyer of wide-ranging abilities and interests — has written “How Libertarians Ought to Think about the U.S. Civil War,” which also instructs us how to think about secession. He avers that “the Constitution does prohibit secession.”

Sandefur’s argument that the Constitution prohibits secession is an inferential one that rests on his conclusion that the action of a State (qua State)

cannot change the nature of the federal Constitution as adopted in 1787: it is a binding government of the whole people of the United States. No [S]tate may unilaterally leave the union.

Actually, Sandefur (and other federalists) to the contrary notwithstanding, the people of each State adopted the Constitution, not the whole people of the United States. And the people of each State were at liberty not to adopt the Constitution. In evidence, I introduce Article VII of the Constitution:

The ratification of the conventions of nine [S]tates, shall be sufficient for the establishment of this constitution between the [S]tates so ratifying the same.

Note, first, that ratification was accomplished State-by-State, not by the people of the United States as a whole. Note, second, that although the Constitution could have gone into effect upon being ratified by the conventions of only nine of the thirteen States, it would have been binding only upon the States whose people ratified it, that is, “between the [S]tates so ratifying the same.”

That all thirteen States did, eventually, ratify the Constitution is beside the point. Four of the States could have remained outside the Union; that is, they could have “seceded” preemptively. I therefore draw the following inference: If a State has the right to decline membership in the Union, it must have the right to withdraw from membership in the Union, inasmuch as the Constitution nowhere proclaims membership to be perpetual.

My inference, unlike Sandefur’s, finds support in the Constitution. I begin with the Tenth Amendment (ratified only three years after the original Constitution), which says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The original Constitution contemplates that the government of the United States might have to suppress insurrections and rebellions (see Article I, Section 8), but it nowhere addresses secession. Secession, in and of itself, is not an act of insurrection or rebellion, both of which imply the use of force. Force is not a requirement of secession, which can be accomplished peacefully.

Therefore, given that the Constitution does not require a subscribing State to pledge perpetual membership in the Union, and given that the Constitution does not delegate to the central government a power to suppress secession, the question of secession is one for each State, or the people thereof, to determine, in accordance with the Tenth Amendment. The grounds for secession could be, as stated above, the abridgment by the United States of the “rights, privileges and immunities”of its citizens.

What about Texas v. White (U.S. Supreme Court, 1868), in which a 5-3 majority anticipated Sandefur’s arguments for a mystical bond of Union; for example:

When…Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.

It would have been bad — bad for slaves, bad for the defense of a diminished Union — had the South prevailed in its effort to withdraw from the Union. But the failure of the South’s effort, in the end, was owed to the superior armed forces of the United States, not to the intentions of the Framers of the Constitution.

In any event, the real jurisprudential issue in Texas v. White was not the constitutionality of secession; it was the right of the post-Civil War government of Texas to recover bonds sold by the secessionist government of Texas. Moreover, as Justice Grier noted in his dissent,

Whether [Texas is] a State de facto or de jure, she is estopped from denying her identity in disputes with her own citizens. If they have not fulfilled their contract, she can have her legal remedy for the breach of it in her own courts.

The majority’s ruling about the constitutionality of secession can be read as obiter dictum and, therefore, not precedential.

Perhaps the good people of Texas, if sufficiently riled, will give the Court something more substantial to chew on.

See “The Constitution: Myths and Realities“.

Substantive Due Process, Liberty of Contract, and the States’ Police Power

Judge Raymond Randolph, in a speech to the Federalist Society’s National Lawyer’s Convention on November 11, 2005, had much to say about substantive due process:

. . . Substantive due process is the idea that the Due Process Clause of the 14th Amendment protects rights even if they are not set out specifically in the Constitution.

The Due Process Clause states simply that ““nor shall any State deprive any person of life, liberty, or property, without due process of law.”” Given the theme of this conference, one must ask about the original meaning of these words. The 14th Amendment due process clause is identical to the due process clause in the Fifth Amendment, applicable to the federal government. Two current Justices — you may guess who they are –– think the phrase ““substantive due process”” is an oxymoron. Process means procedure, not substance –– and that is what it meant historically. That the due process clause ever came to apply to legislation, as it did for the first time in the infamous Dred Scott case, is strange enough. What is the process due from a legislature? A quorum? An accurate vote count? There is something else I find quite odd about this concept. In many of the substantive due process cases the Court has stated that ““fundamental liberties”” are protected. Roe v. Wade is an example. Freedom of religion is, by all accounts, a fundamental liberty. Are we to suppose that freedom of religion is a right the state can take away so long as it does so with due process? That would be protecting a civil right in one amendment, the First, only to allow it to be taken away through another.

The Framers were smart people; they could not have intended such an absurdity. And they did not. History shows that the meaning of ““liberty”” as used in the 5th and 14th Amendments is simply freedom from restraint — that is, imprisonment. This explains why the Framers placed the due process clause in the Fifth Amendment, which deals almost entirely with criminal proceedings. Learned Hand, found the historical evidence supporting this interpretation clear beyond — in his words –– any ““reasonable doubt.” Yet the chances of the Supreme Court going back to the original understanding are, I think, slim to none.

But the Fifth Amendment does not deal exclusively with criminal proceedings, the Fourteenth Amendment has nothing to do with criminal proceedings, and both do explicitly prohibit the taking of life, liberty, or property without due process of law. Given the Due Process Clauses of the Fifth and Fourteenth Amendments, it is unconstitutional for a legislature to enact a law that allows a “taking” of liberty or property, unless such a “taking” is specifically authorized by the Constitution.

By the same token, it is unconstitutional for a legislature to enact a law that the Constitution specifically prohibits. Article I, Section 9, of the Constitution says explicitly that “No Bill of Attainder or ex post facto Law shall be passed” by Congress. That’s why the Constitution in Article I, Section 10, says explicitly that “No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . . .”

The Framers (who were very smart people, indeed) understood that obligation of contracts (a.k.a. liberty of contract or freedom of contract) is both a matter of liberty and a matter of property. The Framers understood that legislative interference in contractual arrangements is a deprivation of due process because such interference prevents willing parties from employing their labor or property in the pursuit of otherwise lawful ends. That is, the legislature finds them “guilty” of otherwise lawful actions by forbidding and penalizing those actions.

The concept of substantive due process is in bad odor, in large part (as Wikipedia explains) because it

was first applied by the Supreme Court in a subsection of Dred Scott v. Sandford (1856), though it can be argued that the doctrine dates back to Calder v. Bull (1798). Dred Scott was a slave who claimed that passing into territory where slavery was prohibited destroyed his owner’s property rights over him. The court ruled in three parts. First, it argued that Dred Scott was not a citizen of the United States and therefore he had no right to liberty under the Constitution of 1856 — this argument, now harshly repudiated, is not based on the Due Process clause but did establish that the Court considered Dred Scott to be property. Second, the court argued that no Federal law could exist which per se appropriated property without advance notice and opportunity for judicial review — —this was a Due Process argument. Thus, the decision established lack of procedure violates Due Process just as much an unfair procedure. After the Fourteenth Amendment applied due process restrictions to states, the Supreme Court used this same doctrine to protect a liberty of contract by routinely striking down (such as in Lochner v. New York) those economic and labor regulations which restricted particular economic activities per se without opportunity for judicial review.

Lochner v. New York is the 1905 case in which the Supreme Court struck down a State statute that attempted to impose a maximum-hours limitation on bakers. Lochner is a bête noire to liberals because it triggered a wave of Supreme Court decisions deemed “pro-business” (as if business were an enemy). But Lochner and its offspring were decided rightly because they upheld, as a matter of due process, the Constitution’s explicit guarantee of liberty of contract. As Justice Peckham wrote for the Lochner majority,

[t]he [New York] statute . . . interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578 , 41 L. ed. 832, 17 Sup. Ct. Rep. 427. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment. . . .This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the state? and that question must be answered by the court.

The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. . . .

It is a question of which of two powers or rights shall prevail,-the power of the state to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.

Justice Holmes, in his famous dissent in Lochner, said that “[t]he 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Social Statics (as Wikipedia explains) is a “conception of social justice, which emphasized the responsibility of the individual for their [sic] nature and actions.” Holmes, in other words, preferred a paternalistic government, as opposed to the government of liberty and individual responsibility clearly intended by the Framers.

But Lochner — properly understood — is not about enacting Mr. Spencer’s Social Statics, nor (as usually charged) is it about achieving a certain “pro-business” result through “judicial activism.” Lochner is about honoring the Constitution’s explicit guarantee of liberty of contract, and about ensuring that that guarantee is not vitiated by legislative overreaching. It is a violation of due process when a legislature deprives citizens of liberty or property by enacting laws forbidden by the Constitution. And that, in essence, is what the Lochner Court said.

To underscore my point, I quote from an article by Richard Epstein in The Heritage Guide to the Constitution (pp. 171-5):

What is clear . . . is that in the antebellum period the Obligation of Contract Clause was the only open-ended federal constitutional guarantee that applied to the states. . . .

Everyone conceded that the clause applied to ordinary contracts between private persons, including partnerships and corporations. . . .

. . . At this point, one way to read the clause is to hold that its prohibitions are prospective but are not absolute. The state may later the rules governing future contracts only in ways that offer just compensation to all contracting parties in the form of greater and stability in their contractual obligations. The three legislative reforms that arose most frequently in the early debates — a statute of frauds, a statute of limitations, and recording acts — are all measures that meet this standard.

By refusing to give the clause any prospective role, Ogden [1827] opened the gateway to partisan legislation that limited the ability of some parties to contract without imposing similar restrictions on their economic competitors. . . .

Liberty of contract nevertheless survived Ogden, for 107 years. The Court upheld it in Bronson v. Kinzie (1843). According to The Oxford Guide to United States Supreme Court Decisions (Oxford University Press, 1999, p. 33),

Chief Justice Roger B. Taney held that [a] legislative attempt to modify the terms of [an] existing mortgage was an unconstitutional impairment of the obligation of contract. Taney agreed that a state could alter the remedies available to enforce past as well as future contracts. He nonetheless emphasized that such changes could not materially impair the rights of creditors. In broad language Taney extolled the virtue of the Contract Clause: “It was undoubtedly adopted as part of the Constitution for a great and useful purpose. It was to maintain the integrity of contracts, and to secure their faithful execution throughout this Union.”

The Oxford Guide continues, however, by outlining the death of liberty of contract:

The Court long adhered to the Bronson rule, invalidating state laws that interfered with contractual rights in the guise of regulating remedies. The decision was effectively superseded, however, by Home Building and Loan Association v. Blaisdell (1934), in which the justices ruled that contracts were subject to the reasonable exercise of state police power.

Just what is “reasonable exercise of state police power”? In Home Building and Loan Association, according to Chief Justice Hughes, writing for the Court, it is this:

We come back, then, directly, to the question of impairment. As to that, the conclusion reached by the court here seems to be that the relief [from mortgage foreclosures] afforded by the [Minnesota] statute does not contravene the constitutional provision because it is of a character appropriate to the emergency and allowed upon what are said to be reasonable conditions.

That is, the Court simply decided to uphold a Minnesota statute that altered the terms of a contract because it wanted to do so, not because it had constitutional authority for doing so. The Constitution doesn’t forbid States to impair contracts except in emergencies or to exercise their “policing power.” No, the Constitution flatly forbids States to impair contracts.

As for States’ so-called police power, an article at FindLaw tells this tale:

[I]deas embodying the social compact and natural rights, which had been espoused by Justice Bradley in his dissent in the Slaughter-House Cases, 43 had been transformed tentatively into constitutionally enforceable limitations upon government. 44 The consequence was that the States in exercising their police powers could foster only those purposes of health, morals, and safety which the Court had enumerated, and could employ only such means as would not unreasonably interfere with the fundamentally natural rights of liberty and property, which Justice Bradley had equated with freedom to pursue a lawful calling and to make contracts for that purpose. 45

So having narrowed the scope of the state’s police power in deference to the natural rights of liberty and property, the Court next proceeded to read into the concepts currently accepted theories of laissez faire economics, reinforced by the doctrine of Social Darwinism as elaborated by Herbert Spencer, to the end that ”liberty,” in particular, became synonymous with governmental hands-off in the field of private economic relations. In Budd v. New York, 46 Justice Brewer in dictum declared: ”The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government.” …

To the State was transferred the task of demonstrating that a statute interfering with the natural right of liberty or property was in fact ”authorized” by the Constitution, and not merely that the latter did not expressly prohibit enactment of the same.

In 1934 the Court in Nebbia v. New York 52 discarded this approach to economic legislation, and has not since returned to it. The modern approach was evidenced in a 1955 decision reversing a lower court’s judgment invalidating a state statutory scheme regulating the sale of eyeglasses to the advantage of ophthalmologists and optometrists in private professional practice and adversely to opticians and to those employed by or using space in business establishments.

In a single year (1934) the Supreme Court demolished liberty of contract and created out of whole cloth what amounts to an unlimited “police power” for the States — liberty and property be damned.

It is long past time for a return to the substantive due process epitomized by Lochner, that is, a defense of constitutionally guaranteed liberties against legislative usurpations of those liberties.

Reclaiming Liberty throughout the Land

Revised version here.

 

Departmentalism, Revisited

I somewhat cavalierly dismiss departmentalism in “No Way Out?” (05 Dec 2004), where I address alternative ways to stop “The Erosion of the Constitutional Contract” (23 Mar 2004). William J. Watkins Jr. explains departmentalism by way of example:

Departmentalist theory is perhaps best examined in the context of President Jefferson’s approach to the Sedition Act. Upon entering office, Jefferson ordered the cessation of all federal sedition prosecutions and he pardoned those who had been convicted. In 1804, Jefferson received a letter from Abigail Adams criticizing his handling of the Sedition Act controversy. Mrs. Adams argued that because the judges had upheld the Sedition Act, President Jefferson had overstepped his constitutional bounds when terminating prosecutions and pardoning offenders.

In a polite response, Jefferson reminded Mrs. Adams that “nothing in the constitution has given [the judges] the right to decide for the executive, more than the Executive to decide for them.” Both branches, continued Jefferson, “are equally independent in the sphere assigned to them.” Jefferson recognized that the judges, “believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution.” However, this did not bind him when performing his duties as chief executive. Because he believed the Sedition Act was unconstitutional, he “was bound to remit the execution of it.”

Departmentalism may be alive and well, at least with respect to John McCain’s status as a “natural born Citizen” under Article II, Section 1, of the Constitution of the United States. As Matthew J. Franck argues, it is not up to the Supreme Court to decide McCain’s citizenship status (as some would have it), it is up to the Electoral College and Congress. And that will be that.

Almost Too Absurd for Words

From SCOTUSblog:

Lawyers for Virginia death-row inmate Christopher Scott Emmett told the Supreme Court on Monday that the state follows a “unique and uniquely dangerous” method of execution by lethal injection.

A synonym of “dangerous” is “life-threatening.” An execution is meant to be life-threatening. In fact, a successful execution is life-taking.

Thats the real issue, isn’t it? Mustn’t threaten a condemned convict with execution. (Tsk, tsk.) It might kill him.

Related posts:
“Does Capital Punishment Deter Homicide?” (04 Oct 2004)
“Libertarian Twaddle about the Death Penalty” (13 Oct 2004)
“Crime and Punishment” (23 Mar 2005)
“Abortion and Crime” (15 May 2005)
“Saving the Innocent?” (23 Jul 2005)
“Saving the Innocent?: Part II” (27 Jul 2005)
“More on Abortion and Crime” (28 Nov 2005)
“More Punishment Means Less Crime” (03 Jan 2006)
“More about Crime and Punishment” (06 Jan 2006)
“More Punishment Means Less Crime: A Footnote” (17 Jan 2006)
“Clear Thinking about the Death Penalty” (23 Jan 2006)
“Let the Punishment Fit the Crime” (14 Apr 2006)
“Another Argument for the Death Penalty” (07 Jun 2006)
“Less Punishment Means More Crime” (25 Aug 2007)
“Crime, Explained” (09 Nov 2007)

The "Good Old Days" of the Fourth Amendment?

Orin Kerr tries to identify the “good old days” of the Fourth Amendment, which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

According to Kerr:

If you had to identify a “high point” of Fourth Amendment protection, I suppose you might pick the window from December 1967 to May 1968, or maybe the six years from December 1967 until some of the pro-law enforcement decisions of the Court in 1973. But if that’s right, it seems to me that the “good old days” of the Fourth Amendment were actually a pretty narrow window of time: anywhere from a few months to five or six years, around forty years ago, out of a 217-year history of the Fourth Amendment.

Kerr’s high point should be called a low point. The six years from 1967 to 1973 were “good old days” when law enforcement was hamstrung in its efforts to protect us from predators. One result was to reinforce the upward trend in the rate of violent and property crimes.

In any event, the Fourth Amendment has been distorted out of all recognition, as I explained in writing about the U.S. Supreme Court’s decision in Hudson v. Michigan:

[T]he majority … believed that the case did not involve a “knock-and-announce” violation. But the majority could not change the fact of Michigan’s concession that there was such a violation. So the majority did the next best thing; it prevented Hudson from getting off scot-free, in spite of the supposed violation. How? The majority found the “exclusionary rule” inapplicable and allowed the evidence found in Booker Hudson’s home to be used against him.

By its action the majority also forestalled claims similar to Hudson’s. The second-guessing by prosecutors and judges of reasonable judgments made by the police in the execution of their duties — especially in the execution of lawful warrants — is not a defense of liberty. Rather, it undermines liberty by making it easier for predators like Booker Hudson to elude justice, on the questionable theory that “it is better that ten guilty persons escape than that one innocent suffer.”

I contend, further, that a proper reading of the Constitution would require either “knock-and-announce” or a warrant, not both. At the time of the framing, when “knock-and-announce” was accepted law, warrants were not accepted law. As William J. Stuntz writes in The Heritage Guide to the Constitution (pp. 326-9):

. . . When the Fourth Amendment was written, the sole remedy for an illegal search or seizure was a lawsuit for money damages. Government officials used warrants as a defense against such lawsuits. Today a warrant seems the police officer’s foe — one more hoop to jump through — but at the time of the Founding it was the constable’s friend, a legal defense against any subsequent claim. Thus it was perfectly reasonable to specify limits on warrants (probable cause, particular description of the places to be search and the things to be seized) but never to require their use.

Hudson served justice, while remaining true to the original meaning of the Constitution.

Hudson may not have been the high point of Fourth Amendment jurisprudence, but it was among the higher points.

Originalism vs. the "Thin" Constitution

See this and this.

A Case for the Second Amendment

The Second Amendment protects an individual right to bear arms, as the U.S. Supreme Court will decide (I think). That right is predicated on, among other things, the need for private citizens to protect themselves against an overbearing state. The overbearing state, in this instance, is the State of New Mexico — its Human Rights Commission to be precise. Praise the Second Amendment and pass the ammunition.

P.S. Here’s another relevant case, also involving New Mexico. (It occurs to me that the adjective “New” is window-dressing. Mexico is Mexico, even when it’s dressed up as “New.”)

Bail-Outs

For my views about the present effort to bail out home buyers who borrowed money foolishly and lenders who lent money foolishly, see this and this. Just change the subject from bankruptcy to default.

An Honest Woman Speaks Out

The “My Turn” feature in the April 14 issue of Newsweek offers “I Am Not the Enemy,” by Felicia J. Nu’Man. She writes so compellingly and wisely that I am tempted to reproduce her every word. But I won’t. Here’s a sample:

I battle crime every day, and I defend myself every day, too. I’m a [__] prosecutor in Louisville, Ky. I have presented cases before juries, but from my first day on the job I have felt that I have been on trial in the court of public opinion. Even my maternal grandmother once asked if I was a Republican (I’m not), while others just asked the ultimate question: how can you put our [__] men in jail?

Depending on my mood, the answer can be a three-part speech on the decay of moral values, educational-attainment levels and teenage motherhood. Other times I simply tell them the defendants put themselves in the penitentiary and I facilitated their exodus from the community. Or better yet, my favorite answer: I didn’t put the crack in their pocket and a gun in the other….

My job is not that of a social worker or a social scientist. I was hired to enforce the laws as drafted. I have a duty to the citizens of the Commonwealth of Kentucky, including all the [__] victims of the drug culture. These victims are not just the dead rival drug dealers but the addicted mothers who neglect their children, the neglected children themselves and the overburdened extended families who care for these addicts and their children.

…Race does not enter the equation for me. My question to these [__] people who believe me to be a traitor is, when will you connect the dots? Please realize, the police and the prosecutors are not the problem; it is the criminals in these depressed neighborhoods who are.

…Of course, [__] people are treated unfairly. Of course, the inner cities have a decaying infrastructure. But there is absolutely no reason to break a reasonable, appropriate law. None. The alternative is chaos.

If you hadn’t guessed, my underscoring replaces the word “black.” And Nu’Man is a brave and wise woman who happens to be black:

James Chance / Rapport for Newsweek

The "Thin" Constitution

Not long ago I came across Louis Michael Seidman’s “Can Constitutionalism Be Leftist?” The paper is an encomium, of sorts, to Seidman’s mentor, Mark Tushnet, who seems to be something oxymoronic, namely, a constitutionalist-socialist. How one could claim to be both things with a straight face is beyond me. It is true, however, that lawyers, politicians, and deluded citizens have conspired (often unwittingly, always in the name of “good,” and seldom admitting their socialism) to replace the Constitution with a socialist manifesto (e.g., see this and this).

In any event, Seidman remarks (on page 5) that

Most of the great goals of the Constitution’s preamble that form the center of Tushnet’s thin constitution — to “establish Justice … promote the general Welfare, and secure the Blessings of Liberty….”

Which is to admit that Tushnet does not honor the Constitution. For the Constitution is not its preamble, it is the text that follows. That text specifies, in some detail, how justice, the general welfare, and the blessings of liberty are to be realized under law.

Tushnet’s “thin” Constitution, then, is no Constitution at all. It is a do-it-yourself approach to law, in which the majority may steal the minority’s property, and vice versa, as long as it is done in the name of “social justice.” (See also this.)

The Fed: Unconstitutional and Worse than Useless

Here and here.

Panhandling as Speech?

That’s right, panhandling is a form of speech, according to a Travis County, Texas, judge:

A city [of Austin] ordinance designed to keep people from begging for money or jobs on the side of some Austin roads has been declared unconstitutional for the second time in less than three years.

In an opinion that criticizes the ordinance as overly broad and questions the city’s argument that it is necessary to ensure traffic safety, Travis County Court-at-Law Judge J. David Phillips upheld a 2005 Municipal Court decision that overturned the city’s sidewalk solicitation rules.

“This ordinance reaches conduct that has little or nothing to do with traffic safety and very much to do with constitutionally protected speech,” Phillips said in an opinion issued Thursday.

Travis County, of course, is dominated by Austin. It is, in other words, a Blue enclave in a Red State.

I would bet that Judge Phillips, as a defender of panhandlers’ “free speech” right to distract drivers (and worse), also subscribes to the Orwellian idea that freedom of speech is served by the McCain-Feingold Act.

That’s the way it is in the People’s Republic of Austin.

You might wonder why the true-Blue denizens of Austin are so “heartless” as to restrict panhandling (via their Leftist city council). It’s a white-liberal-yuppie kind of thing. (And Austin is chockablock with white-liberal-yuppie persons.) One “feels for” the homeless, etc., but one don’t want them to get too close to one’s shiny $60k SUV.

Texas Wins, the Constitution Stands

Jonathan Adler, writing at The Volokh Conspiracy, summarizes the win by Texas:

The Supreme Court handed down its decision in Medellin v. Texas today. Chief Justice Roberts wrote the majority opinion, which held that neither a judgment of the International court of Justice nor the President’s executive order directing state courts to follow the ICJ’s judgment constituted federal law that pre-empts a state’s pre-existing bar on the litigation of subsequent habeas petitions….

This appears to be quite a significant win for Texas (and states) that wil lhave significant ramifications for both separation of powers and the application of international law in U.S. courts.

(See also these three posts at Bench Memos.)

Among other things, the Court’s holding in Medellin supports what I have written (in the context of war): “a treaty … may neither violate nor change the meaning of the Constitution.” Therefore, no treaty — and no presidential act (purportedly) pursuant to a treaty — may trump the Constitution or a constitutional law, either State or federal.

Obama vs. the Second Amendment

Barack Obama’s speech about racism in America vied for blogospheric attention with today’s oral argument in District of Columbia v. Heller (the U.S. Supreme Court’s first Second Amendment case since 1939).

Here are some key passages from Obama’s speech:

The profound mistake of Reverend Wright’s sermons is not that he spoke about racism in our society. It’s that he spoke as if our society was static; as if no progress has been made; as if this country – a country that has made it possible for one of his own members to run for the highest office in the land and build a coalition of white and black; Latino and Asian, rich and poor, young and old — is still irrevocably bound to a tragic past. But what we know — what we have seen – is that America can change. That is true genius of this nation. What we have already achieved gives us hope – the audacity to hope – for what we can and must achieve tomorrow.

In the white community, the path to a more perfect union means acknowledging that what ails the African-American community does not just exist in the minds of black people; that the legacy of discrimination – and current incidents of discrimination, while less overt than in the past – are real and must be addressed. Not just with words, but with deeds – by investing in our schools and our communities; by enforcing our civil rights laws and ensuring fairness in our criminal justice system; by providing this generation with ladders of opportunity that were unavailable for previous generations. It requires all Americans to realize that your dreams do not have to come at the expense of my dreams; that investing in the health, welfare, and education of black and brown and white children will ultimately help all of America prosper….

This time we want to talk about the crumbling schools that are stealing the future of black children and white children and Asian children and Hispanic children and Native American children. This time we want to reject the cynicism that tells us that these kids can’t learn; that those kids who don’t look like us are somebody else’s problem. The children of America are not those kids, they are our kids, and we will not let them fall behind in a 21st century economy. Not this time.

This time we want to talk about how the lines in the Emergency Room are filled with whites and blacks and Hispanics who do not have health care; who don’t have the power on their own to overcome the special interests in Washington, but who can take them on if we do it together.

This time we want to talk about the shuttered mills that once provided a decent life for men and women of every race, and the homes for sale that once belonged to Americans from every religion, every region, every walk of life. This time we want to talk about the fact that the real problem is not that someone who doesn’t look like you might take your job; it’s that the corporation you work for will ship it overseas for nothing more than a profit.

It’s the politics of victimhood. It’s the politics of socialism. It’s the politics of class warfare. It’s the politics of economic ignorance. Not a word about cultural influences or dependency on the state. Not a word about the growth of real income at all levels (not just at the top). Not a word about upward economic mobility, which is the norm in America. Not a word about the fact that economic progress depends upon that “dirty” profit motive.

Obama’s speech may be “eloquent,” in some sense. But it fully reveals him for the dangerous demagogue that he is: a latter-day FDR.

As for the Second Amendment, I predict a 5-4 decision in D.C. v. Heller that upholds an individual right to own a handgun for the purpose of self-defense, subject to “reasonable” regulation in the interest of safety. Some of the dissenters will maintain, illogically, that handguns should be prohibited in jurisdictions with high rates of crime (e.g., D.C.). As if criminals honor bans on handgun ownership. And so it goes, in the upside-down world of liberalism.

9/11 Plotters and the Death Penalty

Should the U.S. execute the 9/11 plotters being held at Guantanomo? AG Mukasey says “no,” and Stephen Bainbridge circles the issue several times before agreeing with the AG:

Let KSM and his pals sit in Guantanamo for the rest of their lives, contemplating their sins.

Doug Mataconis seems to agree with Prof. Bainbridge:

The visceral reaction is to say that these men should die a slow, painful death. But I’ve got to wonder what that’s going to accomplish at this point.

I stand by what I said three years ago:

Justice serves civilization and social solidarity…. [I]t meets the deep, common need for catharsis through vengeance, while protecting the innocent (and all of us) by replacing mob rule with due process of law.

Justice — to serve its purposes — must be swift, sure, and hard. That is, it must work and be seen to work, by the just and unjust alike.

“Swift” and “sure” seldom apply to the death penalty anymore, but “hard” certainly does. The need for social catharsis through judicial vengeance was never greater than in the case of 9/11. Fry ’em.

In Search of Consistency

I have written:

Think of the fine mess we’d be in if the courts were to rule against the teaching of intelligent design not because it amounts to an establishment of religion but because it’s unscientific. That would open the door to all sorts of judicial mischief. The precedent could — and would — be pulled out of context and used in limitless ways to justify government interference in matters where government has no right to interfere.

It’s bad enough that government is in the business of funding science — though I can accept such funding where it actually aids our defense effort. But, aside from that, government has no business deciding for the rest of us what’s scientific or unscientific.

The context for those observations was the legal controversy (Kitzmiller v. Dover Area School District) about the decision of the Dover, Pennsylvania, School Board to mandate that students in public school biology classes be taught the theory of intelligent design (ID) as an alternative to evolution.

Timothy Sandefur seems sympathetic to my general point, when he writes about

the public policy problem of the courts determining what sets of unprovable beliefs are and are not objectively irrational. On one hand, courts have even gone so far as to take judicial notice of the irrationality of certain beliefs. See, e.g., United States v. Downing, 753 F.2d 1224, 1238 n. 18 (3d Cir. 1985) (courts may take judicial notice of the invalidity of phrenology or astrology). But on the other hand, taking a step in this direction threatens important Establishment Clause and Free Exercise rights. That’s why in United States v. Ballard, 322 U.S. 78 (1944), the Court found that it could not inquire into the scientific validity (or lack thereof) of faith healing, in a case involving a mail fraud prosecution. If courts can determine that certain beliefs with regard to ghosts are objectively irrational and untrue, then what about religious beliefs (which are, in fact [according to Sandefur: LC], objectively irrational and untrue)?

And, yet, Sandefur has been a vocal defender of the Kitzmiller decision, in which Judge John E. Jones III held that

the facts of this case make[] it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not… (emphasis added).

Perhaps Sandefur will tell us how he has reconciled his apparently conflicting views. He does not tell us in his paper, “A Response to the Creationists’ “Neutrality” Argument.” The argument of that paper boils down to this:

  • Schools exist for the purpose of teaching facts and sound thinking.
  • Therefore, schools should not teach things like ID, which Sandefur calls “objectively irrational and untrue), even though there is no scientific basis for accepting or rejecting ID. (See, for example, this post and the posts linked therein.)
  • Public schools are governmental institutions.
  • Government cannot be in the business of establishing religion.
  • Therefore, as governmental institutions, schools should not teach ID (a cover story for creationism) as an alternative to evolutionary theory.

In sum, Sandefur parlays an unprovable allegation about ID into a first-amendment case on the strength of the fact that public schools are governmental institutions. That’s true enough. But public schools are not government. That is, unlike legislatures, executives, and judges, they do not control the machinery of the state. Public schools are governmental institutions in the same way that my city-owned electric company is a governmental institution. In both cases, government simply has seized control of what could just as easily be a private institution (and a better one for it). Public schools become “government” only to the extent that government dictates what is taught (or not taught) in public schools, as it does in Kitzmiller.

Sandefur, in essence, argues that government ought to control schools (an anti-libertarian idea) so that it can control the content of what is taught in schools. And that content should advance his “objectively” correct atheistic agenda. Sandefur (like Marx) evinces a naïve faith in what he calls science:

Science’s focus on empirical evidence and demonstrable theories is part of an Enlightenment legacy that made possible a peaceful and free society among diverse equals. Teaching that habit of mind is of the essence for keeping our civilization alive. To reject the existence of objective truth is to reject the the possibility of common ground, to undermine the very purpose of scholarly, intellectual discourse, and to strike at the root of all that makes our values valuable and our society worthwhile…. At a time when Americans are threatened by an enemy that rejects science and reason, and demands respect for dogmas entailing violence, persecution, and tyranny, nothing more deserves our attention than nourishing respect for reason.

In fact, Americans — and liberty — are threatened by many things, not the least of which is dogmatism of the kind Sandefur evinces. As I say here, “Liberty … to the ‘libertarian’ Left, is the ‘right’ to believe as they do.”

Liberty demands, first and foremost, mutual respect. Science is not a breeding ground for mutual respect, as the controversy about global warming (among other issues) should remind us. Ironically (for Sandefur), mutual respect arises mainly from a concept that is widely associated with religion, namely, the “Golden Rule.”