The Solomon Amendment

Coyote Blog has it exactly right about the Solomon amendment case now before the Supreme Court (Rumsfeld v. FAIR). If you haven’t heard of it, the Solomon amendment

is the popular name of 10 USC Sec. 983, a . . . federal law that allows the Secretary of Defense to deny Federal grants (including research grants) to institutions of higher education if they prohibit or prevent ROTC or military recruitment on campus.

Pro-defense types (as I am) may instinctively applaud the Solomon amendment. I oppose it, for the very same reason as the proprietor of Coyote Blog:

[The Solomon amendment] may be the new template for government control of individual lives. In both Universities and state governments, the Feds use the threat of withdrawal of federal funds to coerce actions (thing 55 mile speed limit, title IX, military recruiting on campus) that the Constitution nominally does not see[m] to give them authority over. Now, there is the distinct possibility that federal funds to individuals (Social Security, Medicare, unemployment) could be used to increase federal authority and coercive micro-management at the individual level.

It’s quite a shell game. Congress takes money from taxpayers, then “gives” it away — with strings attached. And because the money has passed through the hands of the federal government, the recipients of the money must do the bidding of the federal government. This wouldn’t be happening if people were allowed to keep their money and use it as they see fit.

Here’s hoping the Supreme Court upholds the Solomon amendment. That result would give liberals yet another reason to favor federalism.

Amend the Constitution or Amend the Supreme Court?

Many pixels have been devoted in recent days to Nobel laureate James Buchanan’s modest proposal, at Cato Unbound, for amending the Constitution. I wrote earlier about a tangential aspect of Prof. Buchanan’s post. Now I must respond to Judge Alex Kozinski’s official commentary at Cato Unbound. Here’s some of what Judge Kozinski has to say:

Dr. Buchanan advances a vision of government — especially the federal government — that I find attractive. There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone’s economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I’m far from convinced that it would achieve the goals set for it — that we’d be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don’t have it so bad at all. We have the world’s strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right.

My take (from a comment thread at The Volokh Conspiracy):

Judge Kozinski is right that we have it “good” in spite of the New Deal and its progeny. What he overlooks, however, is how much better we would have it if it weren’t for the New Deal and its progeny. There is the “seen” (what we have) but there is the “unseen” (what we don’t have because of the oppressive effects of taxation and regulation on social and economic freedom). Judge Kozinski focuses on the seen and forgets about the unseen. His “solution” is to repeal the income tax. But that is no solution at all unless government’s power to do things (unconstitutional things, at that) is curbed. The feds might have to replace the income tax with a sales tax, but they’d do it in a heartbeat if that’s what it would take to continue doing to us the things it’s doing to us. Prof. Buchanan is on the right track, which is to strike at the heart of governmental power. The more practical route to that end, however, is to keep appointing Supreme Court justices whose instincts seem to make them likely allies of Justices Thomas and Scalia.

Personal Responsibility and Bomb Threats

Bleeding hearts must already be gushing about this story:

A passenger who claimed to have a bomb in a carry-on bag was shot and killed by a federal air marshal Wednesday on a jetway to an American Airlines plane that had arrived from Colombia, officials said. . . .

A witness said that the man frantically ran down the aisle of the Boeing 757 and that a woman with him said he was mentally ill.

The passenger, who indicated there was a bomb in the bag, was confronted by air marshals but ran off the aircraft, Doyle said.

The marshals pursued and ordered the passenger to get on the ground, but the man did not comply and was shot when apparently reaching into the bag, Doyle said. Authorities did not immediately say whether any bomb was found.

Passenger Mary Gardner told WTVJ in Miami that the man ran down the aisle from the rear of the plane. “He was frantic, his arms flailing in the air,” she said. She said a woman followed, shouting, “My husband! My husband!”

Gardner said she heard the woman say her husband was bipolar and had not had his medication.

UPDATE (FROM A LATER VERSION OF THE STORY):

The shooting occurred shortly after 2 p.m. as the plane was about to take off for Orlando after about two hours on the ground in Miami. “I don’t know yet if the passenger had been on the plane and was getting off, or was starting to board the aircraft,” airline spokesman Tim Wagner said.

After the shooting, investigators spread passengers’ bags on the tarmac and let dogs sniff them for explosives.

A U.S. official, who spoke on condition of anonymity because of the information’s sensitivity, said authorities examined the bag and found no explosives.

Assuming the facts are as stated in the story, I conclude two things:

The air marshals did their job.

The passenger did not. If he didn’t have a bomb, then he made an unfounded bomb threat and acted in an extremely provocative manner because he didn’t take his medication.

Irresponsibility does not excuse disruptive, threatening behavior.

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

Judge Raymond Randolph, in a speech to the Federalist Society’s National Lawyer’s Convention on November 11, discussed Judge Henry Friendly’s draft opinion in a suit challenging New York’s abortion prohibition in 1970. (Thanks to Orin Kerr of The Volokh Conspiracy for the link.) To quote Juan Non-Volokh of the Conspiracy, Judge Friendly’s opinion

was never published because New York amended its law before the case was decided. Had it been issued, it would have been the first federal court opinion on the constitutionality of a state abortion law. Judge Randolph was one of Friendly’s clerks at the time, and kept a copy of the never-issued draft.

According to the draft, Judge Friendly would have upheld the law, not because he was anti-abortion, but because the law was a constitutional exercise of state power — and that many of the inherently arbitrary policy judgments about abortion should or should not be permissible are better made by elected legislatures than a panel of federal judges. As described by Randolph, the decision anticipated many of the subsequent questions about the legitimacy of non-prohibitory abortion regulations that would follow in the wake of Roe.

Aside from that, Randolph had much to say about substantive due process, privacy, and a Court that has lost sight of the Constitution in its zeal to attain certain results. In this post I’ll address Randolph’s take on 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, I do not see how a legislature can enact any law that simply amounts to a “taking” of liberty or property for no valid constitutional purpose.

The Framers were smart people, as Randolph says. That’s why the Constitution in Article I, Section 9, 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 understood very well that obligation of contracts (or liberty or freedom of contract) is both a matter of liberty and a matter of property. For to interfere legislatively with liberty of contract amounts to 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. 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.

Turning to liberty of contract, I quote from Richard Epstein’s article in The Heritage Guide to the Constitution on freedom of contract (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 [affect prospective contracts] but are not absolute. The state may later the rules governing future contracts only in ways that offer just compensatio 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 frlimitationsatute of limitatins, 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 similtheirstrictions on thier economic competitors. . . .

But liberty of contract survived Ogden. I have written here about the long life and eventual demise of liberty of contract, a demise that coincided with the rise of States’ “police power”:

The Court upheld [liberty of contract] 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 :

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”; the Constitution flatly forbids States to impair contracts. A libertarian Court would begin to restore freedom of contract by reversing Home Building and Loan Association v. Blaisdell. . . .

As for States’ so-called policing 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.

And there we are. 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.

More on Abortion and Crime

In Freakonomics economist Steven Levitt, drawing on a 2001 paper co-authored with John Donohue, argued that access to abortion (through legalization) is the main cause of the decline in the rate of violent crime. Here’s how The Washington Post reported it:

Freakonomics is packed with fascinating ideas. Consider Levitt’s notion of a relationship between abortion access and the crime drop. First, Freakonomics shows that although commonly cited factors such as improved policing tactics, more felons kept in prison and the declining popularity of crack account for some of the national reduction in crime that began in about the year 1990, none of these completes the explanation. (New York City and San Diego have enjoyed about the same percentage decrease in crime, for instance, though the former adopted new policing tactics and the latter did not.) What was the significance of the year 1990, Levitt asks? That was about 16 years after Roe v. Wade . Studies consistently show that a disproportionate number of crimes are committed by those raised in broken homes or who were unwanted as children. When abortion became legal nationally, Levitt theorizes, births of unwanted children declined; 16 years later crime began to decline, as around age 16 is the point at which many once-innocent boys start their descent into the criminal life. Leavitt’s [sic] clincher point is that the crime drop commenced approximately five years sooner in Alaska, California, Hawaii, New York and Washington state than it did in the nation as a whole. What do these states have in common? All legalized abortion about five years before Roe .

Steve Sailer offered statistical evidence that led me to reject on Levitt’s argument in a post on May 15, 2005, saying this:

If the legalization of abortion did result in less crime it’s only because abortion became more prevalent among that segment of society that is most prone to commit crime. (I dare not speak its name.) What policy does Levitt want us to infer from that bit of causality? Would he favor a program of euthanasia for the most crime-prone segment of society? Now there’s a fine kettle of fish for Leftists, who favor abortion and oppose “oppression” of the the segment of society that is the most crime-prone.

I stand by my original assertion [here] that ” incarceration and spending on the criminal justice system…are the public-policy weapons of choice” in dealing with crime. Whatever abortion is, it isn’t a crime-footing tool.

It now seems that Levitt’s findings are built on statistical quicksand. From the abstract of a paper by Christopher L. Foote and Christopher F. Goetz of the Boston Fed:

[A] fascinating paper by Donohue and Levitt (2001, henceforth DL) . . . purports to show that hypothetical individuals resulting from aborted fetuses, had they been born and developed into youths, would have been more likely to commit crimes than youths resulting from fetuses carried to term. We revisit that paper, showing that the actual implementation of DL’s statistical test in their paper differed from what was described. . . .We show that when DL’s key test is run as described and augmented with state‐level population data, evidence for higher per capita criminal propensities among the youths who would have developed, had they not been aborted as fetuses, vanishes.

Whatever abortion is — and I have a lot to say about that in these links — it most certainly is not a crime fighting tool.

The Original Meaning of the Ninth Amendment

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

I have quoted elsewhere the following passage from the U.S. Senate’s annotated Constitution:

It is clear from its text and from Madison’s statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

Today I received my copy of The Heritage Guide to the Constitution, which includes an article (pp. 366-371) about the Ninth Amendment by Thomas McAffee. According to McAffee,

. . . Madison . . . affirmed that the reason for the Ninth Amendment was not to expand the power of the Court to find new rights, but rather to restrict the ability of the Court to expand the legislative powers of Congress. Madison continued to maintain that that was the central meaning of the Ninth Amendment throughout his life, and his interpretation was seconded by most commentators of the time.

Related posts:

Notes on the State of Liberty in American Law (01/01/05)
Law, Liberty, and Abortion (10/31/05)
Don’t Just Take My Word for It (11/07/05)

Double Jeopardy, in Disguise

First it was O.J., now it’s Robert Blake: “a civil jury decided Friday the tough-guy actor was behind the slaying, and ordered him to pay her children $30 million in damages.” I have no sympathy for either of those low-lifes, but the actions taken against Simpson and Blake strike me as a form of double jeopardy. I thought so at the time of Simpson’s civil trial; I still think so, now that the same thing has happened to Blake.

Not coincidentally, here’s one of the provisions of my proposed Constitution:

A citizen of the United States of America may not be . . . brought before a criminal or civil court to answer for the same act or acts that had been judged previously, under any rubric of law, by any criminal or civil court of any State or the United States of America.

That provision dates from the first version of the proposed Constitution, which I published in the pre-blog version of Liberty Corner, five or six years ago.

Workplace Whiners

I was thinking earlier today about the prevalance of whining in the workplace. Then I came across this, from Suits in the Workplace: An Employment Law Blog:

In this age of easily hurt feelings and heightened sensitivity to just about everything, it’s nice to see a common sense decision in an employment case. The Tenth Circuit just ruled – brace yourself – that a supervisor who “set goals and deadlines for an ongoing project, requested that [an employee] 1) keep track of her daily activities in fifteen-minute intervals for seven days, 2) work in her cubicle so [the supervisor] could more closely supervise her, and 3) inform [the supervisor] of dates she would be out of the office” did not constructively discharge the employee she was managing. Turnwall v. Trust Co. of America, No. 04-1303 (10th Cir. 2005). . . .

Thankfully, the Tenth Circuit held that the working conditions weren’t objectively intolerable, and that there was no outrageous conduct, so they got it right. But what does this lawsuit say about the average supervisor’s ability to manage an employee who admittedly had problems prioritizing her work? Goal setting and regular monitoring of progress are textbook management techniques, and were perfectly appropriate under these circumstances. Nevertheless, the employer here had to defend a federal lawsuit, and a subseqent appeal, at no small cost, essentially because somebody couldn’t handle criticism from a supervisor.

We are blessed with excellent Federal Judges here in the Eastern District of Virginia. . . .

Yes, you are blessed. I speak from experience. The experience of putting up with workplace whiners like Ms. Turnwall, and the experience of having been backed up by the Eastern District of Virigina whenever one of those whiners went to court.

The UN and the Internet

It seems that the U.S. will remain in charge of the Internet:

By MATT MOORE, Associated Press Writer

TUNIS, Tunisia – A U.N. technology summit opened Wednesday after an 11th-hour agreement that leaves the United States with ultimate oversight of the main computers that direct the Internet’s flow of information, commerce and dissent.

A lingering and vocal struggle over the Internet’s plumbing and its addressing system has overshadowed the summit’s original intent: to address ways to expand communications technologies to poorer parts of the world.

Negotiators from more than 100 countries agreed late Tuesday to leave the United States in charge, through a quasi-independent body called the Internet Corporation for Assigned Names and Numbers. . . .

Libertarian purists will object that no government agency should be involved in the operation of the Internet. I would agree with that if the Internet weren’t an international phenomenon. But it is, and that opens the possibility of overt or covert control by foreign governments. Faced with that possibility, the second-best option is to retain the U.S. government’s oversight role.

It’s bad enough that some nations try to control the content of Internet traffic within their own borders. But imagine an Internet in which the likes of Canada, France, Russia, China, Syria, and Iran had a hand in controlling the “flow of information, commerce and dissent” within the U.S. and between the U.S. and the rest of the world. We would then have to create a separate, U.S.-and-free-speech-partners-only Internet that could connect to the UN-controlled system only through special protocols and filters. What a step backward that would be.

A Baseless Debate

Legal Affairs Debate Club is hosting a debate about the limits of presidential power. The premise of the debate:

Critics of the Bush Administration have attacked the president for a host of unilateral actions he has taken. The president, critics say, took the country into two wars without congressional approval, detained suspected terrorists without trials or even charges, and pulled the United States out of longstanding agreements like the Kyoto Accords.

Or, “when did you stop beating your wife?”

The debate is baseless because the answers to the critics’ charges are straightforward:

Military operations in Afghanistan and Iraq were — and are — expressly authorized by Congress.

Terrorists (as opposed to members of the Iraqi Army) who have fought against American forces abroad merit none of the protections of the Geneva Conventions and certainly none of the protections of the Bill of Rights — no matter what the Supreme Court says.

The U.S. Senate has never ratified the Kyoto Protocol and, therefore, the U.S. is not bound by it.

Perhaps the next debate should be about the greatest movie ever made. At least there would be something to debate, even if no one could win the debate.

Bad Law Makes for Bad Consequences

“Hard cases, it is said, make bad law” — John Campbell Argyll (Scottish, 1678-1743)

Difficult cases — cases in which the law must be twisted to achieve “desirable” results — can cause good laws to be changed, with bad consequences.

Metaphor du Jour

Groucho Marx is supposed to have said “I wouldn’t join any club that would have me as a member” — or something in that vein. In other words, when an exclusive club loses its exclusivity, membership in the club becomes less valuable, both to the members who joined it when it was still exclusive and to prospective members (if they are as astute as Groucho Marx).

But there’s more to it than that. Suppose that the exclusive club has stringent standards of conduct, which aren’t always observed but which most of its members strive to honor. Suppose that by changing its rules of admission — by admitting Groucho Marx, for instance — the club also seems to signal that it has lowered its standards of conduct. What is likely to happen as a result? At the margin, even some of those members who had joined the club when it was exclusive will adapt to the lower standards of conduct. Moreover, many persons who would have sought membership in the club when it was exclusive will simply decline to join it, with the result that, at the margin, some of them will not rise to the standards of conduct that they would have risen had they joined the club.

Human beings respond to social norms in ways that might seem “irrational” to those who think that humans are nothing but wealth-maximizing automata. Humans are much more complex than that, however, which is why it’s important to have exclusive “clubs” with high standards of conduct. If abstractions such as “honor” and “duty” were meaningless, soldiers wouldn’t join a “club” whose unwritten rules sometimes require them to throw themselves onto hand grenades; firemen wouldn’t join a “club” whose unwritten rules sometimes require them to risk almost-certain death on the slim odds of rescuing a person from an inferno.

There is a lesson in this for who are ineligible for certain exclusive clubs. They should — in the interest of society’s well-being — form their own exclusive clubs instead of trying to force their way into those clubs that already exist. They can call their clubs whatever they wish — and they can set very high standards for membership in those clubs — but they should not devalue the clubs that already exist by trying to change the rules of admission to those clubs.

Much Ado about Donning

The U.S. Supreme Court, in the first case argued before Chief Justice Roberts,

ruled on November 8 that the Fair Labor Standards Act (FLSA) requires two meat-packing companies to pay employees for time walking within the plant to their workstations after the employees don specialized protective gear, plus time spent at the end of the day walking back and waiting to doff such gear. (IBP v. Alvarez, No. 03 1238, and Tum v. Barber Foods, Inc., No. 04 66.)

All right, so the Court didn’t find the FLSA unconstitutional, much as I would welcome such a result. The Court’s reticence in that respect is unsurprising, given that the FLSA has survived (with amendments) these 70 years.

In any event, the Court wasted its time in requiring the meat-packing companies to pay employees for the time involved in the activities covered by its ruling. Sooner or later, the real hourly wages paid the workers who wear special protective clothing and/or the number of such workers will be reduced to compensate for the fact that the Court’s ruling does not make those workers any more productive than they were before the ruling. The intial boost in employees’ pay (hourly wages times the amount of time spent in donning, doffing, and walking) will have to come from somewhere — and the somewhere is wage rates and/or employment.

Yes, the adjustment will take some time — especially because the companies affected by the ruling must negotiate with unions. But it will happen because consumers aren’t going to demand more meat products or pay higher prices for meat products just because the Supreme Court has chosen to waste its time enforcing the FLSA.

(The quotation above is from an e-mail sent by the Richmond, Virginia, law firm of McGuireWoods.)

Don’t Just Take My Word for It

For what? For the wrongness of Roe v. Wade. Of course, many legal scholars have been saying the same thing for years. It just happens that I came to see the wrongness of Roe v. Wade on my own, not by cribbing from what those scholars have said. But vindication is always sweet, and I must share the experience. I just came across a piece at FindLaw by Edward Lazarus, who is “pro-choice” and who clerked for the late Justice Blackmun (who opined for the Court in Roe). Among other things, Lazarus has this to say:

What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent – at least, it does not if those sources are fairly described and reasonably faithfully followed.

My argument, precisely.

There are other prominent legal scholars — pro- and anti-abortion — who agree that Roe v. Wade was decided wrongly, though sometimes for other reasons. For a roundup of such views, see this.

Wait . . . there’s more. I wrote here that

Roe v. Wade is nothing more than an illogical, ill-founded, politically expedient position staked out by seven justices who were caught in the tide of “personal liberation.” That tide, which rose in the 1960s and has yet to fully recede, is powered by the perverse belief that liberty is to be found in license.

William Saletan, writing at Legal Affairs, in a review of Linda Greenhouse’s Becoming Justice Blackmun, says this:

Was [Blackmun] a feminist crusader? Or was he, as his files suggest, more of an old-fashioned conservative? At his retirement ceremony two decades after Roe, Blackmun portrayed the case as a pioneering advance in a difficult climate, “a step that had to be taken as we go down the road toward the full emancipation of women.”

Enough said.

Oh, That Privacy Right

I have written here and here, for example, about the “right to privacy” conjured in Roe v. Wade and its precedents. Of course, judge-made rights can be overturned as quickly as judges want to overturn them. Tom Smith of The Right Coast explains:

Skeptics about Roe v. Wade have long railed about the invention of a right of sexual privacy by the US Supreme Court in that controversial case. Where was that controversial right supposed to come from? Sex, let alone abortion, is mentioned nowhere in the Constitution. Yet find such a right the Court did. Legal scholars wondered, as well they might, where such a right, once invented, would find its limit. Does the right of sexual privacy imply a right to gay marriage? To any form of sexual conduct, no matter how alarming?

Now, in a bold decision positively reeking of integrity, Judge Stephen Reinhardt has laid down the law, finally proclaiming that this murky right goes so far, but no further. Strict constructionists everywhere may breathe a sigh of relief. How ironic, and indeed inspirational, it is that this paradoxical opinion comes from a judge some brand as among the most liberal and activist on the ever amusing Ninth Circuit.

The case arose when irate parents objected to the Palmdale School District’s giving their children, including first graders, a questionaire including sexually explicit questions, along the lines of whether the children played with their “private parts”, had sexual feelings, and so on. Parents asserted a constitutional right not to have the school introduce young children, many of whom do not yet know where babies come from, to concepts such as masturbation, sexual abuse, and sex generally. However foolish the notion may be that parents should want to shield first graders from intrusive sexual investigation, one can understand how, in a world of expansive conceptions of sexual privacy, they could have imagined they had such a ridiculous privilege. But no more. They have been educated, as harshly as their children, by the Ninth Circuit. . . .

This is really an important lesson for everyone interested in constitutional law. We frequently jump to the conclusion that words like “privacy” mean what they mean in ordinary contexts. But this is not so. “Privacy” does not mean such things as a family exercising control over whether state employees ask their six year olds about their private parts and whether they ever touch them. (After all, what possible motive could a teacher have for posing such a question, other than a benign one? What possible dangers could such questions pose?) It means something much more complicated than that. Thus, the right to privacy includes the right to choose to terminate the life-like process of an otherwise about-to-be-born non-person person-like post-fetal entity, but not to control the early education of such entity in its early stages of personhood, once that small person or near-person has been put into the hands of the state educational system. That is, to strip the point of its many deeply intriguing nuances, you may kill the thing, but not control its education; the former is privacy, the latter is not.

The lesson is this: Judges will find rights where it’s convenient to find rights and they will repudiate rights where such rights might get in the way of the outcomes they want to achieve.

If only Judge Reinhardt’s “principled” view of privacy had been understood by the U.S. Supreme Court in 1965 (Griswold v. Connecticut) and 1973 (Roe v. Wade).

An Answer to Judicial Supremacy?

LAST REVISED 9:15 AM 11/05/05 (with yet more improvements to my proposed “nullification” amendment and a statement of its advantages)

I have in the past rejected nullification as the answer to the problem of judicial supremacy, which is that judicial supremacy leaves it to the Supreme Court to interpret the Constitution. Now, thanks to a great find by Lydia McGrew of Right Reason, I may be able to convince myself that there is a way to make nullification work. Her find is James Madison’s “Report of 1800” on the Virginia Resolutions of 1798, which includes this (as quoted by McGrew):

However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

McGrew goes on to say that

I do realize that Madison came out against state-by-state nullification of federal laws. . . . But here he certainly seems to be defending a very strong form of states’ rights, even to the point of the states’ having the right to decide in some effective fashion when a federal law is an unconstitutional usurpation, to act to “arrest the progress of the evil.” Perhaps what Madison envisages is that the states together should decide (when a majority of states agree?) that a federal law is such a usurpation and that only then would it be nullified. But even this more cautious sort of state sovereignty (that is, more cautious than an assertion of a lone state’s right to nullify a federal law) would be a far cry from anything we have now.

A lone State, or a few States acting separately, might well nullify perfectly constitutional laws. It is unlikely that a majority of States acting in concert would do so. Now the question is whether there is a way in which States could constitutionally procure such an act of nullification. The answer is “yes”:

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . .

It seems to me that a proposed amendment on nullification might have a chance, were it to appeal to Madison’s wisdom and read something like this:

1. Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of Congress and/or holdings of the Supreme Court of the United States. 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.

2. The first convention of the States shall be held in the first-odd numbered year following the ratification of this amendment. Each convention of the States shall assemble on the 5th day of July, or the first business day following, and shall stay in session for as long as there is a quorum of at least one delegate from each of 51 States when a convention is in general session, and until a convention is dissolved by a majority vote of the delegations present and attending, but not later than December 31 of the same year.

3. The first convention of the States shall be held in a place in Kansas to be determined by the most numerous house of the legislature thereof. The manner of determining the site of subsequent conventions of the States shall be determined at the first. The expenses of each convention of the States shall be defrayed by the States. Each State shall be responsible for the expenses of its delegation to each convention, and all of the attending States shall share equally in the cost of providing facilities and support for each convention.

4. The most numerous house of the legislature of each State shall select that State’s delegation for each convention of the States. Each State’s delegation shall vote as a unit on all matters coming before a convention, as directed by the most numerous house of that State’s legislature. The officers of each convention shall be elected by a majority of the delegations appointed and attending, which delegations may also by majority vote appoint committees and establish procedures for setting the rules of the convention.

5. A majority of the delegations present and voting shall be sufficient to revise and/or revoke a specific act (or acts) of Congress or a specific holding (or holdings) of the Supreme Court of the United States, provided that:

the instrument of revision and/or revocation shall specifically identify the act (or acts) of Congress and/or the holding (or holdings) of the Supreme Court of the United States that are being revised and/or revoked, and then shall specifically revise and/or revoke such act, acts, holding, and/or holdings, and

no revision or revocation may have the effect of increasing the expenditures of the Government of the United States or of any State.

6. The revision and/or revocation of an act (or acts) of Congress and/or a holding (or holdings) of the Supreme Court of the United States shall be effective upon the publication of same by the presiding officer of the convention, whereupon the Government of the United States and all other governmental units in the United States which may be affected by any such revised and/or revoked act, acts, holding, and/or holdings shall be duty-bound to honor such revisions and/or revocations as the supreme law of the land.

7. A revised or revoked act of Congress or holding of the Supreme Court of the United States may not be further revised and/or reinstated by Congress, the Supreme Court of the United States, or convention of the States until at least eight years have passed since the publication of the last amendment or revocation of the same act or holding. This prohibition applies to any new or amended act or holding that would effectively revise or reinstate any act(s) or holding(s) originally revised or revoked by a convention of the States.

8. No branch of the Government of the United States may directly or indirectly, or overtly or covertly, attempt by any manner of means to influence the assembly of, proceedings of, or decisions of any convention of the States. No State which chooses not to send a delegation to a particular convention may directly or indirectly, or overtly or covertly, attempt by any manner of means to influence the proceedings of or decisions of said convention.

9. No branch of the Government of the United States nor any State or jurisdiction thereof shall presume to certify or challenge, by any manner of means, the decisions of any convention of the States.

10. Each convention of the States shall appoint legal counsel with authority to act in perpetuity for the convention by which said counsel was appointed. Legal counsel may and shall bring suit against the Government of the United States, any State, or the succeeding convention of the States if said entity, in counsel’s opinion, shall have violated any provision of sections 6 through 9 of this amendment. Actions against the courts of the United States, including the Supreme Court thereof, shall be tried promptly in the Senate of the United States, and disposed of by a majority of the number of Senators then holding office. All other actions shall be heard and resolved promptly by the Supreme Court of the United States

The “nullification convention” — as I like to think of it — has the advantage of imposing an independent check on the actions of Congress and the Supreme Court. Those bodies, knowing that many or their acts and decisions might be revised or revoked every four years, would be more careful to follow the Constitution in the first place.

What we have now in the present system of “checks and balances” is one-party control of Congress, which has been the case far more often than not. Things are even worse when the party in control of Congress is the president’s party, which seems to diminish if not extinguish a president’s enthusiasm for the veto.

As for the Supreme Court, well, its course is unpredictable because one never knows how the political land will lie when vacancies occur, whether justices serve fixed terms or for life. But one thing is certain about the Court: its power is unchecked. That must end.

When Must the Executive Enforce the Law? (08/20/04)
More on the Debate about Judicial Supremacy (08/24/04)
Another Look at Judicial Supremacy (09/07/04)
Judicial Interpretation (09/16/04)
Delicious Thoughts about Federalism (11/23/04)
Is Nullification the Answer to Judicial Supremacy? (11/24/04)
The Alternative to Nullification (11/27/04)
No Way Out? (12/05/04)
The Wrong Case for Judicial Review (06/03/05)
States’ Rights and Skunks (10/20/05)

Law, Liberty, and Abortion

This an abridgement of a post at Liberty Corner II. It is complete but for long quotations from Supreme Court opinions.

There are compelling legal and libertarian arguments against abortion. The essence of the legal argument is this: Roe v. Wade was decided wrongly. But that argument will not convince reflexive libertarian defenders of abortion. For them, I have a separate, four-fold argument against abortion: Life cannot be treated as property; the appeal to “viability is circular; privacy cannot be an absolute right; and the appeal to “safety” opens the door to the legalization of any form of murder. I conclude by explaining how the legalization of abortion plays into the hands of the state by creating a precedent for the taking of innocent life wherever the state finds it convenient to do so.

The Wrongness of 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. . . .

[excerpts of the majority opinion in Roe v. Wade]

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. I have dissected a key precedent, Griswold v. Connecticut (1965), in the “Liberty” section of this post. It bears repeating that in drafting the Ninth Amendment Madison had in mind no particular unenumerated rights:

It is clear from its text and from Madison’s statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

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.

Underlying the majority’s sophistry was its typically “liberal” reluctance to place responsibility where it belongs, in the hands of those persons who (in almost all cases) conceive through engaging voluntarily in an act, the potential consequences of which are well known. Thus we read:

Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . All these are factors the woman and her responsible physician necessarily will consider in consultation.

All these are factors which “the woman,” barring rape, would have known before conception. . . .

[Justice White’s dissent, followed by excerpts of Justice Rehnquist’s concurring dissent]

Roe v. Wade is nothing more than an illogical, ill-founded, politically expedient position staked out by seven justices who were caught in the tide of “personal liberation.” That tide, which rose in the 1960s and has yet to fully recede, is powered by the perverse belief that liberty is to be found in license.

The Supreme Court’s subsequent decision in Casey (1992) is a step in the right direction. As blogger Patterico explains, Casey

1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe‘s trimester framework with a rule tied to viability.

The next step, or steps, should be to undo Roe v. Wade completely and then turn it around. The States have no basis for allowing abortion (except where a mother’s physical health or life are endangered) because to do so deprives the fetus (a person) of due process of law and equal protection under the law, in violation of the Fifth and Fourteenth Amendments.

Abortion is Anti-Libertarian

The demonstrable fact of Roe v. Wade‘s wrongness will not dissuade those libertarians who defend abortion as a extra-legal right. Unsophisticated, self-styled libertarian defenders of abortion hold an “anything goes” view of liberty that is in fact antithetical to liberty. They may call themselves libertarians, but they might as well be anti-war protesters who block traffic or “greens” who burn down ski lodges.

Liberty requires each of us to pursue happiness without causing harm to others, except in self-defense. Those libertarian defenders of abortion who bother to give the issue a bit of thought try to build a case for abortion around self-defense, arguing that a woman who aborts is defending herself, and that no one should question her act of self-defense.

The self-defense argument — which is sometimes billed as a property rights argument for — goes like this: A fetus is an “uninvited guest” in or “invader” of its mother’s body, which is the mother’s property. The mother may therefore do with the fetus as she will.

But a fetus is neither an uninvited guest nor an invader. Rather, it is a life, and that life — by biological necessity — is its mother’s responsibility:

Conception, in almost all cases, is the result of a consensual act of sexual intercourse. (Rape, which accounts for a relatively small number of applications for abortion, is an exception. But it’s an exception that shouldn’t dictate what happens in the majority of pregnancies. If the state insists that rape victims give birth (as it ought to because of the state’s obligation to protect life), the state then takes responsibility for the adoption of those babies who may be unwanted by their mothers.)

Conception is a known consequence of the act of sexual intercourse. And it has been shown that when abortion becomes less readily available (e.g., more expensive),

[t]his induces teenage girls to avoid risky sex, which will likely have the effect of lowering pregnancy rates, abortion rates, and birth rates among this group of individuals. . . . Behavior is not static, and claims based on the assumption of static behavior are flawed. [That is, “they” will not “just get pregnant, anyway”: ED]
It has been shown, as well, that

[l]aws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. . . . [O]ur results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. [So much for “back alley abortions”: ED]

Life indisputably begins at conception:

Surely the child is alive then [at the tying of the umbilical cord]. It cannot be the mere act of tying the cord that produced life. Then when did life begin? With respiration? That is only one added function. There was circulation previously, and the power of nervous action and motion. Why is not a fetus alive when it is diving and plunging in its mother’s womb? Simply because its lungs are not inflated? Out on such nonsense! One might as well say that a child born blind was not alive because it did not use its eyes. It is on the record, I believe that children have been born by the Caesarean section, after the death of the mother. If there was no vitality in the fetus previous to respiration, then why was it not dead, like the mother? There can be no doubt of it, there was vitality or life. Then if we acknowledge that the fetus had life, how can we say at what period of gestation that life commences? The period of quickening varies, and I do not see why a fetus is not quite as much alive just before it moves as just after. . . . [From O.C. Turner, “Criminal Abortion,” Boston Medical and Surgical Journal, Vol. 5 (April 21, 1870), pp. 299-300. Quoted by Marvin N. Olasky in Abortion Rites: A Social History of Abortion in America, Regnery Publishing, Inc., Washington, D.C. (1995), pp. 121-122.]

A person who conceives therefore has incurred an implicit obligation to care for the life that flows from her consensual act.

Given that the existence of a fetus cannot cause harm to anyone but its mother, the only valid route for terminating the life of a fetus would be a legal proceeding that culminates in a judicial determination that the continuation of the life of the fetus would cause grave physical harm or death to the mother.

A fetus, in sum, cannot be treated as “property,” to be disposed of willy-nilly. A libertarian who argues otherwise can do so only by regarding the fetus a sub-human implantation for with the mother bears no responsibility. Such a libertarian might as well argue for a right to keep slaves or a right to dispose of dependent children and parents through involuntary euthanasia.

When that realization strikes home, the next step may be an appeal to the viability of the fetus. The argument that a fetus is “inviable” — and therefore somehow undeserving of life — until it reaches a certain stage of development is a circular argument designed to favor abortion. A fetus (except in the case of a natural miscarriage) is viable from the moment of conception until birth as long as it is not aborted. It is abortion that makes a fetus inviable. Abortion therefore cannot be excused on the basis of presumed inviability.

Drawing an arbitrary line, say, three months after conception does not change the fact that a life is a life. And if that arbitrary line can be drawn, why not draw it at birth or just after birth or at any time during a child’s life? Remember, we are arguing here about libertarian principles, not legal niceties. If a child is a mother’s “property” — or if a mother always has a right to “defend” herself from an “unwanted guest” (in her womb or in her home) — why stop at abortion in the first trimester? (Actually, the law hasn’t stopped it there, which is a point that I’ll come to when I discuss the slippery slope down which we’re headed.)

Where, then, lies a valid libertarian defense of abortion? In privacy? Not at all. Privacy, to the extent that it exists as right, cannot be a general right, as I have argued above. If privacy were a general right, a murderer could claim immunity from prosecution as long as he commits murder in his own home, or better yet (for the murderer), as long as he murders his own children in his own home.

A “practical” libertarian might argue that legalizing abortion makes it “safer” (less dangerous to the mother), presumably because legalization ensures a greater supply of abortionists who can do the job without endangering the mother’s life, and at a lower price than a safe abortion would command without legalization. I’m willing to grant all of that, but I must observe that the same case can be made for legalizing murder. That is, a person with murderous intent could more readily afford to hire a professional who to do the job successfully and, at the same time, avoid putting himself at risk by trying to do the job himself. “Safety” is a rationalization for abortion that blinks at the nature of the act.

I am unable to avoid the conclusion that abortion is an anti-libertarian act of unjustified aggression against an innocent human being, an act that is undertaken for convenience and almost never for the sake of defending a mother’s life. Murder, too, is an act of convenience that is seldom justified by self-defense. Abortion, therefore, cannot be validated by mistaken appeals to self-defense, privacy, viability, and safety. Nor can abortion be validated (except legalistically) by a series of wrongly decided Supreme Court cases.

The Slippery Slope

If libertarians are to be faithful to libertarian principles, they must oppose the law even when — especially when — it puts convenience above principle. As I wrote here (modified language in brackets):

You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because [you just like them or because they comport with your half-baked notion of liberty]. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need — as it has in done in many instances. . . .

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:

Roper: So now you’d give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that.

More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Libertarians who applaud the outcomes of such cases as Griswold v. Connecticut and Roe v. Wade because those outcomes seem to advance personal liberty are consorting with the Devil of statism. Every time the state fails to defend innocent life it acquire a new precedent for the taking of innocent life.

Thus we come to the slippery slope. As I wrote here:

[T]hink about the “progressive” impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening — all of them steps down a slippery slope toward state control of human destiny.

In a later post I said that “the state is condoning and encouraging a resurgence of Hitlerian eugenics.” If you think I exaggerate, consider this:

In an article titled, “The Abortion Debate No One Wants to Have,” a former Washington Post reporter speaks of her Down Syndrome daughter and the conflicts such children provoke among enlightened pro-abortion professionals. She concludes:

And here’s one more piece of un-discussable baggage: This question is a small but nonetheless significant part of what’s driving the abortion discussion in this country. I have to think that there are many pro-choicers who, while paying obeisance to the rights of people with disabilities, want at the same time to preserve their right to ensure that no one with disabilities will be born into their own families. The abortion debate is not just about a woman’s right to choose whether to have a baby; it’s also about a woman’s right to choose which baby she wants to have.

Amy Welborn makes this apposite comment:

. . . This is not about “having” or “not having” babies with disabilities – the common way of discussing such things, when they are discussed at all. It is about “killing” or “not killing” babies with disabilities. Period.

And Wilfred McClay at Mere Comments provides us with a perspective rarely included in the debate.

I myself recall having a conversation with a Down’s syndrome adult who noted the disparity between Senator Edward M. Kennedy’s well-publicized support for the Special Olympics, and his equally well-known insistence that no woman should have to bear the indignity of a “defective” or unwanted child. “I may be slow,” this man observed, “but I am not stupid. Does he think that people like me can’t understand what he really thinks of us? That we are not really wanted? That it would be a better world if we didn’t exist?”

. . . This from a speech by the late Malcolm Muggeridge, given at the University of San Francisco in 1978:

. . . I know, that as sure as I can possibly persuade you to believe: governments will find it impossible to resist the temptation . . . to deliver themselves from this burden of looking after the sick and the handicapped by the simple expedient of killing them off. Now this, in fact, is what the Nazis did . . . not always through slaughter camps, but by a perfectly coherent decree with perfectly clear conditions. In fact, delay in creating public pressure for euthanasia has been due to the fact that it was one of the war crimes cited at Nuremberg. So for the Guinness Book of Records you can submit this: That it takes just about 30 years in our humane society to transform a war crime into an act of compassion. That is exactly what happened.

Not only can it happen in America, it is happening in America. Thus convenience does make killers of us all — or all of us who condone abortion and therefore encourage its accompanying eugenic evils.

CLICK HERE FOR THE FULL POST, WHICH INCLUDES RELEVANT PORTIONS OF SUPREME COURT OPINIONS.

Law, Liberty, and Abortion

There are compelling legal and libertarian arguments against abortion. The essence of the legal argument is this: Roe v. Wade was decided wrongly. But that argument will not convince reflexive libertarian defenders of abortion. For them, I have a separate, four-fold argument against abortion: Life cannot be treated as property; the appeal to “viability” is circular; privacy cannot be an absolute right; and the appeal to “safety” opens the door to the legalization of any form of murder. I conclude by explaining how the legalization of abortion plays into the hands of the state by creating a precedent for the taking of innocent life wherever the state finds it convenient to do so.

The Wrongness of Roe v. Wade

VIII

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The [410 U.S. 113, 154] Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).

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.

It is clear from its text and from Madison’s statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

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.

Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . All these are factors the woman and her responsible physician necessarily will consider in consultation.

All these are factors which “the woman,” barring rape, would have known before conception.

Justice White’s dissent says it all:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health. Nor is this plaintiff, who claims no threat to her mental or physical health, entitled to assert the possible rights of those women [410 U.S. 223] whose pregnancy assertedly implicates their health. This, together with United States v. Vuitch, 402 U.S. 62 (1971), dictates reversal of the judgment of the District Court.

Likewise, because Georgia may constitutionally forbid abortions to putative mothers who, like the plaintiff in this case, do not fall within the reach of Â§ 26-1202(a) of its criminal code, I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health. I would reverse the judgment of the District Court in the Georgia case.

And here is a portion of Justice Rehnquist’s concurring dissent, in which he focuses on “privacy” and the applicability of the Fourteenth Amendment:

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967). . . .. . . The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. . . .

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

The Supreme Court’s subsequent decision in Casey (1992) is a step in the right direction. As blogger Patterico explains, Casey

1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe‘s trimester framework with a rule tied to viability.

Abortion is Anti-Libertarian

But a fetus is neither an uninvited guest nor an invader. Rather, it is a life, and that life — by biological necessity — is its mother’s responsibility:

Conception, in almost all cases, is the result of a consensual act of sexual intercourse. (Rape, which accounts for a relatively small number of applications for abortion, is an exception. But it’s an exception that shouldn’t dictate what happens in the majority of pregnancies. If the state insists that rape victims give birth (as it ought to because of the state’s obligation to protect life), the state then takes responsibility for the adoption of those babies who may be unwanted by their mothers.)

Conception is a known consequence of the act of sexual intercourse. And it has been shown that when abortion becomes less readily available (e.g., more expensive),

[t]his induces teenage girls to avoid risky sex, which will likely have the effect of lowering pregnancy rates, abortion rates, and birth rates among this group of individuals. . . . Behavior is not static, and claims based on the assumption of static behavior are flawed. [That is, “they” will not “just get pregnant, anyway”: ED]

It has been shown, as well, that

[l]aws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. . . . [O]ur results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. [So much for “back alley abortions”: ED]

Life indisputably begins at conception:

Surely the child is alive then [at the tying of the umbilical cord]. It cannot be the mere act of tying the cord that produced life. Then when did life begin? With respiration? That is only one added function. There was circulation previously, and the power of nervous action and motion. Why is not a fetus alive when it is diving and plunging in its mother’s womb? Simply because its lungs are not inflated? Out on such nonsense! One might as well say that a child born blind was not alive because it did not use its eyes. It is on the record, I believe that children have been born by the Caesarean section, after the death of the mother. If there was no vitality in the fetus previous to respiration, then why was it not dead, like the mother? There can be no doubt of it, there was vitality or life. Then if we acknowledge that the fetus had life, how can we say at what period of gestation that life commences? The period of quickening varies, and I do not see why a fetus is not quite as much alive just before it moves as just after. . . . [From O.C. Turner, “Criminal Abortion,” Boston Medical and Surgical Journal, Vol. 5 (April 21, 1870), pp. 299-300. Quoted by Marvin N. Olasky in Abortion Rites: A Social History of Abortion in America, Regnery Publishing, Inc., Washington, D.C. (1995), pp. 121-122.]

A person who conceives therefore has incurred an implicit obligation to care for the life that flows from her consensual act.

Given that the existence of a fetus cannot cause harm to anyone but its mother, the only valid route for terminating the life of a fetus would be a legal proceeding that culminates in a judicial determination that the continuation of the life of the fetus would cause grave physical harm or death to the mother.

The Slippery Slope

You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because [you just like them or because they comport with your half-baked notion of liberty]. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in “penumbras, formed by emanations” of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need — as it has in done in many instances. . . .

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt’s play about Sir Thomas More, A Man for All Seasons:

Roper: So now you’d give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that.

More: Oh? And when the last law was down–and the Devil turned round on you–where would you hide? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Thus we come to the slippery slope. As I wrote here:

[T]hink about the “progressive” impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening — all of them steps down a slippery slope toward state control of human destiny.

In a later post I said that “the state is condoning and encouraging a resurgence of Hitlerian eugenics.” If you think I exaggerate, consider this:

In an article titled, “The Abortion Debate No One Wants to Have,” a former Washington Post reporter speaks of her Down Syndrome daughter and the conflicts such children provoke among enlightened pro-abortion professionals. She concludes:

And here’s one more piece of un-discussable baggage: This question is a small but nonetheless significant part of what’s driving the abortion discussion in this country. I have to think that there are many pro-choicers who, while paying obeisance to the rights of people with disabilities, want at the same time to preserve their right to ensure that no one with disabilities will be born into their own families. The abortion debate is not just about a woman’s right to choose whether to have a baby; it’s also about a woman’s right to choose which baby she wants to have.

Amy Welborn makes this apposite comment:

. . . This is not about “having” or “not having” babies with disabilities – the common way of discussing such things, when they are discussed at all. It is about “killing” or “not killing” babies with disabilities. Period.

And Wilfred McClay at Mere Comments provides us with a perspective rarely included in the debate.

I myself recall having a conversation with a Down’s syndrome adult who noted the disparity between Senator Edward M. Kennedy’s well-publicized support for the Special Olympics, and his equally well-known insistence that no woman should have to bear the indignity of a “defective” or unwanted child. “I may be slow,” this man observed, “but I am not stupid. Does he think that people like me can’t understand what he really thinks of us? That we are not really wanted? That it would be a better world if we didn’t exist?”

. . . This from a speech by the late Malcolm Muggeridge, given at the University of San Francisco in 1978:

. . . I know, that as sure as I can possibly persuade you to believe: governments will find it impossible to resist the temptation . . . to deliver themselves from this burden of looking after the sick and the handicapped by the simple expedient of killing them off. Now this, in fact, is what the Nazis did . . . not always through slaughter camps, but by a perfectly coherent decree with perfectly clear conditions. In fact, delay in creating public pressure for euthanasia has been due to the fact that it was one of the war crimes cited at Nuremberg. So for the Guinness Book of Records you can submit this: That it takes just about 30 years in our humane society to transform a war crime into an act of compassion. That is exactly what happened.

Right Again?

President Bush has nominated Judge Samuel Alito to the Supreme Court. I wrote this on October 27:

Bush has planned all along to nominate a man (e.g., Judge Michael McConnell) to replace Justice O’Connor.

But Bush had to seem to want to replace O’Connor with another woman.

Bush therefore chose Miers, whose nomination he knew would be fiercely opposed on the right.

Given Miers’s position as White House counsel, her name could be withdrawn as a matter of principle (defense of the separation of powers).

Bush’s withdrawal of the Miers nomination would not only please the right but also not be seen as a bow to the left.

The nominee isn’t McConnell, but he’s just as good as far as I can tell. The choice of Alito certainly isn’t a bow to the left. As Max Goss says at Right Reason, ” NPR has been throwing around terms like ‘wacko’ and ‘radical’ all morning. Must be a good guy.” Hear, hear!

"Equal Protection" and Homosexual Marriage

REVISED AT 2: 49 PM (CT) 10/30/05

The “equal protection” clause of the Fourteenth Amendment is getting quite a workout these days. In some jurisdictions, “equal protection” gives a homosexual person the same access to his or her “partner’s” company’s health-insurance plan as a spouse in a traditional marriage. In other jurisdictions, “equal protection” leads to the recognition of homosexual “marriage” on the same basis as traditional marriage. And on and on.

None of this would be happening if the “equal protection” clause hadn’t long ago been turned upside down by loose constructionists. What “equal protection” really means is this:

Any law that is otherwise constitutional is a valid law, which must be applied equally to all persons.

As long as that law is applied equally to all persons, it is irrelevant if the application of the law happens to lead to unequal outcomes for various identifiable groups of persons. Instead, “equal protection” now means that everyone is entitled to the same outcome — the law be damned.

Consider, for example, an employer who is foolish enough to screen job applicants by administering tests that might, even by inference, measure intelligence. Why? Because such tests would expose the employer to a charge of racial discrimination, under the Civil Rights Act of 1964, under which it has become illegal for employers to make hiring decisions if the effect of those decisions (not the intent, but the effect) seems discriminatory.

The perverse logic of the current interpretation of the “equal protection” clause may be further illustrated by a (not so far-fetched) hypothetical. Many crimes carry a stiffer penalty if a perpetrator possesses a firearm in the commission of a crime. The current, perverted interpretation of the “equal protection” clause would eliminate the additional penalty for carrying a firearm on the ground that all criminals ought to be treated the same. Taken to the extreme, the current, perverted interpretation of the “equal protection” clause would de-criminalize crime on the ground that criminal statutes do not afford criminals “equal protection” of the law; that is, criminals go to jail while others go free. The logic of the current, perverted interpretation of the “equal protection” clause boils down to this: Legislatures may not attempt to legislate for the preservation and protection of a civil society (e.g., heterosexual marriage is good for society, potentially violent criminals are bad for society) if legislation somehow fails to treat all persons equally, even persons who are not the intended beneficiaries or targets of legislation.

Marriage, as an institution that comes under the jurisdiction of the States, should be governed by the laws of the States. A State court that decrees, without benefit of legislation, that marriage is available to homosexuals has made new law by applying the perverted meaning of the “equal protection” clause. A proper application of the “equal protection” clause by a State court would go something like this:

The legislature of this State, acting in accordance with the constitution of this State, has determined that marriage consists of a legal, binding, union between a man and a woman. Therefore, this court cannot institute homosexual marriage because to do so would dilute the benefits pertaining to marriage under the laws of this State, by requiring the State to transfer scarce resources to the support of homosexual unions, in violation of “due process” and “equal protection” clauses of the Fourteenth Amendment to the Constitution of the United States. All who come under the purview of a constitutional law are entitled to the protection of that law. All who do not may petition the legislature for a more encompassing law.

And so, even though marriage is a State-controlled institution, it would be within the purview of the U.S. Supreme Court to overrule a State supreme court’s creation of a right to homosexual marriage without legislative authority. Why? Because the issue involved — “equal protection” — arises from an application of the U.S. Constitution.

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