Rehnquist’s Successor: A Test of Bush’s Political Philosophy and Resolve

John Roberts may be a “stealth nominee” for the Supreme Court, but it’s unlikely that Bush’s nominee to replace Rehnquist can be as stealthy as Roberts. For one thing, conservative Senators surely will try to ferret out, if not block, another pseudo-conservative like O’Connor or Kennedy (not to mention Souter).

Knowing that, will Bush decide to placate his conservative base and nominate a limited-government conservative-libertarian like Janice Rogers Brown? If he doesn’t, Bush’s slide toward the accommodationist policies of his father will be confirmed. A sad waste of a Republican majority in Congress.

It’s showdown time. If Bush fails to nominate someone in the mold of Judge Brown I will withdraw everything I have ever said about the GOP being the last, best hope for the restoration of limited government.

Guilty Until Proven Innocent

Excerpt of an e-mail from the law firm of McGuireWoods (“No Good Deed Goes Unpunished? Seventh Circuit Rules That No Adverse ‘Employment’ Action is Necessary to Sustain Title VII Retaliation Claims”):

Executive Secretary, Chrissy Washington worked for the Illinois Department of Revenue on a flexible schedule from 7 a.m. to 3 p.m., instead of the standard 9-5 schedule, allowing her to care for her son with Down Syndrome. When some of her duties were reassigned to others, she filed charges with state and federal agencies alleging race discrimination. Subsequently, a senior manager required that she work from 9 to 5, and when she refused, her position was abolished. Washington was assigned to another Executive Secretary post with a different supervisor and was required to apply anew for a flextime schedule, which was refused. Washington maintained that it was her prior discrimination charge that led supervisors to rescind the flextime schedule on which her son depended. . . .

. . . [The Seventh Circuit Court of Appeals] concluded (with a highly entertaining reference to the comic strip Dilbert) that where an employer retaliates for protected activity by exploiting an employee’s known vulnerability, such as Washington’s reliance on flextime to care for her disabled son, the action can be a material change sufficient to sustain a retaliation claim under Title VII [of the Civil Rights Act of 1964]. The standard for materiality, the court noted, is whether the employer’s action has the “potential” to dissuade an employee (and, by logical extension, other employees) from pursuing her rights under Title VII.

Although this opinion does not reflect a uniform view among the jurisdictions on the ultimate issue, it should serve to alert employers to some of the potential problems that can arise from the implementation of flextime schedules and other employee-friendly initiatives. The court clearly says that once these admittedly optional benefits are in place for an employee, their removal can serve as a basis for retaliation claims.

Lesson 1: A benefit, once bestowed, can become an entitlement.

Lesson 2: An employee who has filed an Equal Employment Opportunity (EEO) claim against an employer may became immune to otherwise defensible business decisions by that employer.

As my HR director used to say whenever a disgruntled employee or former employee filed an EEO claim: “We (the company) are guilty until proven innocent.” Because that’s how the EEO racket works.

What Is the "Living Constitution"?

Dahlia Lithwick of Slate inveighs against opponents of the “Living Constitution” without explaining it. Here’s Dahlia:

To hear Tom DeLay and his cronies tell it, the only alternative to the interpretive theory of “Originalism” or “strict construction” is to have judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want. Here’s Jonah Goldberg on the allure of a dead Constitution: “A ‘living Constitution’ denies us our voice in this regard because it basically holds that whatever decisions we make—including the 13^th, 14^th, and 15^th Amendments—can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn’t take their oath to uphold and defend the Constitution in good faith because they couldn’t know what they were swearing to.”

Goldberg goes on to quote Justice Antonin Scalia’s dissent in the recent Ten Commandments cases: “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate.”

And here is Todd Gaziano from the Heritage Foundation: “If judges can essentially do whatever they want in the guise of updating the [C]onstitution … making it real for today or choosing whatever silly phrase you want, then we might as well have a completely unwritten Constitution.” . . .

A Nexis search for the words “living Constitution” turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it’s hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.

Is it because the words “living Constitution,” like the words “feminist” or “liberal,” have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Scalia is right. But let’s hear it directly from the Justice:

Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law. . . .

. . . There is no text in the Constitution that you could reinterpret to create a right to abortion. . . . So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. . . .

What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. . . . [I]n fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then . . . that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.

What are the arguments usually made in favor of the Living Constitution? . . . The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.

This is . . . an anthropomorphism equivalent to what you hear from your stockbroker, when he tells you that the stock market is resting for an assault on the 11,000 level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake; it’s a legal document, and like all legal documents, it says some things, and it doesn’t say other things. And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again.

My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. . . .

Some people are in favor of the Living Constitution because they think it always leads to greater freedom — there’s just nothing to lose, the evolving Constitution will always provide greater and greater freedom, more and more rights. Why would you think that? It’s a two-way street. And indeed, under the aegis of the Living Constitution, some freedoms have been taken away.

Recently, last term, we reversed a 15-year-old decision of the Court, which had held that the Confrontation Clause — which couldn’t be clearer, it says, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witness against him.” But a Living Constitution Court held that all that was necessary to comply with the Confrontation Clause was that the hearsay evidence which is introduced — hearsay evidence means you can’t cross-examine the person who said it because he’s not in the court — the hearsay evidence has to bear indicia of reliability. I’m happy to say that we reversed it last term with the votes of the two originalists on the Court. And the opinion said that the only indicium of reliability that the Confrontation Clause acknowledges is confrontation. You bring the witness in to testify and to be cross-examined. That’s just one example, there are others, of eliminating liberties.

So, I think another example is the right to jury trial. In a series of cases, the Court had seemingly acknowledged that you didn’t have to have trial by jury of the facts that increase your sentence. You can make the increased sentence a “sentencing factor” — you get 30 years for burglary, but if the burglary is committed with a gun, as a sentencing factor the judge can give you another 10 years. And the judge will decide whether you used a gun. And he will decide it, not beyond a reasonable doubt, but whether it’s more likely than not. Well, we held recently, I’m happy to say, that this violates the right to a trial by jury. The Living Constitution would not have produced that result. The Living Constitution, like the legislatures that enacted these laws would have allowed sentencing factors to be determined by the judge because all the Living Constitution assures you is that what will happen is what the majority wants to happen. And that’s not the purpose of constitutional guarantees.

Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy. The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers’ work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts — they try to read the two to comport with each other. If they can’t, it’s judges’ work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that’s what Marshall says: It’s judges’ work. . . .

. . . If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.

Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.

. . . What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.

[W]here we have arrived — [is] at the point of selecting [judges] to write a constitution, rather than [judges] to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

Give ’em hell, Nino.

You can’t always have all the rights you want; there’s nothing “natural” about rights. Sometimes you must fight for the rights you want, which, in this post-Revolutionary era, means — or should mean — fighting to have the Constitution amended or fighting to have legislatures adopt constitutional laws. As Justice Scalia says so eloquently, the “Living Constitution” isn’t about rights, it’s about the ability of the majority to impose its will on the minority, without going to the trouble of amending the Constitution or effecting constitutional legislation.

Judge Roberts and Women

Oh, the hue and cry about Judge John Roberts’s writings of 20-plus years ago. In one instance,

he said that a controversial legal theory then in vogue — of directing employers to pay women the same as men for jobs of “comparable worth” — was “staggeringly pernicious” and “anti-capitalist.”

Well, he was right then, and he would be just as right today if he were to say the same thing. There is no such thing as “comparable worth,” a doctrine that would substitute someone’s subjective judgment about the “value” of work for the objective judgment of the market about the value of work.

In another instance,

Linda Chavez, then the White House’s director of public liaison . . . had proposed entering her deputy, Linda Arey, in a contest sponsored by the Clairol shampoo company to honor women who had changed their lives after age 30. Arey had been a schoolteacher who decided to change careers and went to law school.

In a July 31, 1985, memo, Roberts noted that, as an assistant dean at the University of Richmond law school before she joined the Reagan administration, Arey had “encouraged many former homemakers to enter law school and become lawyers.” Roberts said in his memo that he saw no legal objection to her taking part in the Clairol contest. Then he added a personal aside: “Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide.”

That’s certainly not dogmatic opposition to the idea of married woment working outside the home, though the likes of Ted Kennedy and NOW (strange bedfellows, indeed) will portray it in that light.

Politically incorrect as it may be to say that encouraging homemakers to work outside the home may not be for the common good, there is reason to think that Roberts was right when he said as much. As I wrote here:

Because estimates of GDP don’t capture the value of child-rearing and other aspects of “household production” by stay-at-home mothers, the best way to put 1900 and 2000 on the same footing is to estimate GDP for 2000 at the labor-force participation rates of 1900. The picture then looks quite different: real GDP per capita of $4,300 in 1900, real GDP per capita of $25,300 in 2000 (a reduction of 28 percent), and an annualized growth rate of 1.8 percent, rather than 2.1 percent.

The adjusted rate of growth in GDP per capita still overstates the expansion of prosperity in the twentieth century because it includes government spending, which is demonstrably counterproductive. A further adjustment for the cost of government — which grew at an annualized rate of 7.5 [percent] during the century (excluding social transfer payments) — yields these estimates: real GDP per capita of $3,900 in 1900, real GDP per capita of $19,800 in 2000, . . . an annualized growth rate of 1.6 percent. (In Part V of “Practical Libertarianism for Americans,” I will [did] estimate how much greater growth we would have enjoyed in the absence of government intervention.)

The twentieth century was a time of great material progress. And we know that there would have been significantly greater progress had the hand of government not been laid so heavily on the economy. But what we don’t know is the immeasurable price we have paid — and will pay — for the exodus of mothers from the home. We can only name that price: greater incivility, mistrust, fear, property loss, injury, and death.

Most “liberal” programs have unintended negative consequences. The “liberal” effort to encourage mothers to work outside the home has vastly negative consequences. Unintended? Perhaps. But I doubt that many “liberals” would change their agenda, even if they were confronted with the consequences.

Should women be free to work outside the home? Absolutely. They must judge what’s best for themselves, in light of their obligations as parents — if they have such obligations.

Should government be in the business of encouraging women to work outside the home — perhaps even encouraging the breakup of families — by spending taxpayer dollars for that purpose? Absolutely not, because such encouragement is a form of paternalism that pushes people in the direction of making decisions that they wouldn’t otherwise make — in this case, decisions that undermine the kind of civil society that makes liberty possible. As Jennifer Roback Morse wrote,

[t]he libertarian approach to caring for the dependent is usually described in terse form as “let families and private charity take care of it, and get the government out of the way.” This position is sometimes ridiculed as unrealistic or attacked as harsh. But the libertarian position, once fully fleshed out, is both humane and realistic.

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

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

In contrast to the libertarian approach, “progressives” view government provision of social services as the first resort, not the last. Describing marriage as a “privatization scheme” implies that the most desirable way to care for the dependent is for the state to provide care. An appreciation of voluntary cooperation between men and women, young and old, weak and strong, so natural to libertarians and economists, is completely absent from this statist worldview. . . .

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

There I go again, questioning liberal (and sometimes libertarian) orthodoxy.

I Missed This One (08/12/04)
A Century of Progress? (01/30/05)
Feminist Balderdash (02/19/05)
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)

Treasonous Speech?

Eugene Volokh considers treason and speech. He offers several candidate First Amendment rules:

Speech is unprotected whenever the speaker knows that it’s likely to aid the enemy. . . .

Speech is unprotected whenever the speaker has the purpose of aiding the enemy. . . .

Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is paid for such speech. . . .

Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is coordinating his speech with the enemy. . . .

Speech is unprotected only when the speaker has the purpose of aiding the enemy, and is actually employed by the enemy. My friend and fellow lawprof Tom Bell takes this view.

Speech is protected regardless of the speaker’s purpose of aiding the enemy or coordination with the enemy. . . .

I addressed Bell’s view (Volokh’s option 5) several months ago:

If it’s treason, it’s treason. An unpaid traitor can do just as much harm to the nation as can a paid traitor.

It would be better to do away with the law of treasonous expression altogether than to draw an arbitrary line between paid and unpaid traitors. If a person’s treachery goes no further than expressions of hatred for America or sympathy with America’s enemies, let that person suffer the consequences in the forum of public opinion.

I prefer Volokh’s option 2, an option that Volokh doesn’t like because

prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime.

I suppose. But presumably an intention to aid the enemy would have to be proven in a court of law. I doubt very much that an unsubstantiated intention would survive an appeal. Why not give it a try and see how the Supreme Court rules on the issue — as surely it would be asked to do.

Just to be clear about it, I’m not suggesting charges of treason against those who sympathize with the enemy. The friend of our enemy is not our friend, but neither is he or she necessarily our enemy. Just don’t turn your back.

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
The Illogic of Knee-Jerk Privacy Adocates (10/06/04)
Treasonous Blogging? (03/05/05)
Absolutism (03/25/05)
Shall We All Hang Separately? (08/13/05)
Foxhole Rats (08/14/05)

Saving the Innocent? (Part II)

I ended “Saving the Innocent?” with the following quotation and observation:

The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?” 238

That’s the question, isn’t it? Better for whom? It’s better for the guilty, who may claim more victims, but certainly not better for those victims.

And in the next post (“Sunday’s Question“), I asked this:

Is a rabid dog any less dangerous because of its brain abnormalities, because it doesn’t know what it’s doing, because it’s not fully grown, or because it’s merely defending its territory?

Now I read this in today’s paper:

[Texas] Gov. Rick Perry changed the 28 sentences to life in prison after the Supreme Court ruled that juveniles cannot be executed because of the Eighth Amendment ban on cruel and unusual punishment.

History shows release is possible for some of them.

Death penalties [in Texas] were halted for four years after the 1972 Supreme Court decision in Furman vs. Georgia.

According to state prison records reviewed by The Dallas Morning News, 40 of the 47 Texas inmates who left death row then have been released from prison.

Two died in prison and five remain behind bars.

At least two who were released killed again. One was Kenneth McDuff, who was convicted in 1992 for killing two women. He was executed in 1998.

Of the 40 who were released, 22 committed new offenses ranging from misdemeanors to murder. About half of those paroled returned to prison because of new crimes or violations of parole. Many led quiet lives.

Evidently, in our “enlightened” society, it is better that many innocent persons be victimized so that some murderers can lead “quiet lives.”

Saving the Innocent?

The killing by British police officers of an apparently innocent man in London’s Underground will cue the olde civil liberties chorus:

Better that ten guilty persons escape than that one innocent suffer.

–English jurist William Blackstone

“n” — the number of guilty persons — has increased since the late 1700s, when Blackstone wrote. Alexander “Sasha” Volokh offers some useful perspective:

Charles Dickens generously endorsed a value of n = “hundreds” for capital cases, and not just “that hundreds of guilty persons should escape,” but that they should escape “scot-free.” 99 Dickens was, in fact, so generous that hundreds of guilty persons escaping scot-free was not only better than one innocent person suffering — it was even better “than that the possibility of any innocent man or woman having been sacrificed, should present itself, with the least appearance of reason, to the minds of any class of men!” 100….

Of course, such blithe invocation could easily lead too far down the road to “inconsiderate folly” and “pestiferous nonsense.” As one author noted, there is “nothing so dangerous as a maxim”: 107

Better that any number of savings-banks be robbed than that one innocent person be condemned as a burglar! Better that any number of innocent men, women, and children should be waylaid, robbed, ravished, and murdered by wicked, wilful, and depraved malefactors, than that one innocent person should be convicted and punished for the perpetration of one of this infinite multitude of crimes, by an intelligent and well-meaning though mistaken court and jury! Better any amount of crime than one mistake in well-meant endeavors to suppress or prevent it! 108….

Jeremy Bentham, founder of utilitarianism, warned against the warm fuzzy feeling that comes from large values of n:

We must be on guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence. Public applause has been, so to speak, set up to auction. At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished. 128 ….

James Fitzjames Stephen suggested that Blackstone’s maxim

resembles a suggestion that soldiers should be armed with bad guns because it is better that they should miss ten enemies than that they should hit one friend. . . . Everything depends on what the guilty men have been doing, and something depends on the way in which the innocent man came to be suspected. 134….

The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?” 238

That’s the question, isn’t it? Better for whom? It’s better for the guilty, who may claim more victims, but certainly not better for those victims.

Roberts Looks Better All the Time

From an article by Jo Becker and Amy Argetsinger in today’s WashPost:

As an up-and-coming young lawyer in the White House counsel’s office from 1982 to 1986, John G. Roberts Jr. weighed in on some of the most controversial issues facing the Reagan administration, balancing conservative ideology with a savvy political pragmatism and a confidence that belied his years….

In 1983, the Supreme Court struck down laws that contained provisions for Congress to veto actions taken by executive departments and agencies. [Rep. Elliott Levitas (D-Ga.)] wanted to meet with [President] Reagan to determine “the manner of power sharing and accountability within in the federal government.” The request offended Roberts’s notion of the proper separation of powers.

“There already has, of course, been a ‘Conference on Power Sharing,’ ” Roberts wrote, sarcastically referring to the convention at which the Constitution was drafted. “It took place in Philadelphia’s Constitution Hall in 1787, and someone should tell Levitas about it and the ‘report’ it issued.”

Good on you, mate.

(Thanks to The Supreme Court Nomination Blog for the pointer.)

Judge Roberts and the Defense of America

Emily Bazelon, writing at Slate, doesn’t like Judge John Roberts’s willingness to defend America:

Roberts may…turn out to be a wise, thoughtful, and appealing justice. Tonight when Bush announced his nomination, Roberts talked about feeling humbled, which won him points on TV. But an opinion that the 50-year-old judge joined just last week in the case Hamdan v. Rumsfeld should be seriously troubling to anyone who values civil liberties. As a member of a three-judge panel on the D.C. federal court of appeals, Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections.

According to the government, Salim Ahmed Hamdan is the former driver and bodyguard of Osama Bin Laden. He was captured by an Afghan militia in November 2001, during the U.S. invasion, and shipped off to Guantanamo Bay. In July 2003, the Bush administration brought charges against Hamdan, as it has done against only three others among the hundreds of suspected terrorists being held at Guantanamo. Hamdan was accused of conspiring to commit attacks on civilians, murder, and terrorism, and the Bush administration moved to try him before a special military tribunal.

This tribunal isn’t like the courts-martial that are used for prisoners of war. It goes by rules that cut back the rights of defendants even more drastically than the tribunal that the United States has helped establish in Iraq to try Saddam Hussein has. Hamdan has no right to be present at his trial. Unsworn statements, rather than live testimony, can be presented as evidence against him. The presumption of innocence can be taken away from him at any time; so can his right not to testify to avoid self-incrimination. If Hamdan is convicted, he can be sentenced to death.

The opinion Roberts joined, written by Judge A. Raymond Randolph for a unanimous panel (though the third judge, Stephen Williams, expressed a reservation in a concurrence), swallows all of that and then some. The opinion says that Congress authorized the president to set up whatever military tribunal he deems appropriate when it authorized him to use “all necessary and appropriate force” to fight terrorism in response to 9/11. While the president has claimed the authority only to try foreign suspects before the tribunals, there’s nothing in the Hamdan opinion that stops him from extending their reach to any other suspected terrorist, American citizens included. This amounts to a free hand—and one Bush is not shy about extending. The administration has already devised its own tribunals to review its claims that the Guantanamo detainees are all enemy combatants who are not entitled to the international protections accorded to prisoners of war. As of February, 558 hearings had resulted in freedom for only three prisoners. The Supreme Court has yet to rule on the legality of these tribunals—a question that Roberts may now help decide.

I hope so.

What Bazelon and her ilk cannot seem to grasp is that America is at war. Hamdan isn’t a jay-walker; he’s an enemy; he could have been shot on the spot. As Justice Franfurter wrote 61 years ago:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is ‘the power to wage war successfully.’… Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as ‘an unconstitutional order’ is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. ‘The war power of the United States, like its other powers … is subject to applicable constitutional limitations’,….To recognize that military orders are ‘reasonably expedient military precautions’ in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war.

Judge Roberts seems to adhere to that principle. Let’s hope that he joins the Supreme Court, for America’s sake.

Related posts:

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
More about War and Civil Liberties (06/28/04)
Why Soverignty? (09/14/04)
Why We Fight (12/07/04)
Redeeming the Promise of Liberty (05/06/05)
Where Do You Draw the Line? (05/22/05)
An Agenda for the Supreme Court (06/29/05)

An Agenda for the Supreme Court

I argued in Part VII of “Practical Libertarianism for Americans” that the practical way to redeem the promise of liberty is through a renaissance (or nascence) of pro-libertarian federalism — under the guidance of Republican appointees to the U.S. Supreme Court. In light of the Court’s anti-libertarian majorities in Gonzales v. Raich and Kelo v. City of New London (my commentary here, here, and here), it would take many years — if not decades — to see the Court safely into the hands of a pro-libertarian, federalist majority. I now almost despair of the possibility of such a sea change in the Court’s composition. But with candidates like Janice Rogers Brown in the wings, hope is not dead.

Therefore, I will from time to time offer my agenda for a more libertarian Court. It is an admittedly ambitious agenda that would advance liberty, which must be understood as the negative right to be left alone — in one’s person, pursuits, and property — as long as one leaves others alone. Liberty, in that sense, encompasses what the Founders intended by “life, liberty, and the pursuit of happiness” in the Declaration of Independence. In sum, the liberty right is a triune concept, with life as its basis and the pursuit of happiness (personal satisfaction or self-interest) as its end.

I begin with life, without which liberty is a nullity.

Defend Life

The Court should do three things under this heading: reverse the majority in Roe v. Wade, ensure that a person cannot — unlike Terri Schiavo — be euthanized at the whim of an interested party, and put a stop to forced mental screening. Abortion (especially selective abortion), involuntary euthanasia, and forced mental screening are steps down a slippery slope toward complete state control of human destiny.

Eugenics was considered “progressive” a century ago, and it is considered “progressive” today. After all, the state controls our economic and social destiny, why shouldn’t it control our biological destiny as well? It’s all for the best, isn’t it? Ah, the banality of evil.

Defend American Sovereignty

In another post I stipulated the following:

1. “Life, liberty, and the pursuit of happiness” summarizes the American ideal.

2. America’s sovereignty provides a shield behind which Americans may pursue the American ideal.

3. Americans’ ability to pursue the American ideal therefore depends on the successful defense of American interests and America’s sovereignty.

4. Americans, acting through the state, should defend American interests and America’s sovereignty.

The sovereignty of the United States is a shield for the benefits afforded Americans by the U.S. Constitution, most notably the enjoyment of civil liberties, the blessings of more-or-less free markets and free trade, and the protections of a common defense. To cede sovereignty is to risk the loss of those benefits. That is why we must always be cautious in our commitments to international organizations and laws.

We can and should work to make the U.S. more benign, that is, more libertarian. But if we didn’t have our somewhat benign state to protect us it’s quite likely that we’d live under one that’s entirely evil. Remember Hitler and Stalin? Those bad guys were really bad — and there are plenty more where they came from. Just look around you at the world we live in.

The warmaking power of the United States government is essential to the preservation of America’s sovereignty and Americans’ liberty. Yet the present Court has cavalierly undermined that warmaking power in its handling of the cases of detainees captured by American armed forces operating lawfully in Afghanistan and Iraq. (See this post and follow the links.) A future Court would do well to heed Justice Felix Frankfurter, who in the case of Korematsu v. United States (1944) said this:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is ‘the power to wage war successfully.’… Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as ‘an unconstitutional order’ is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. ‘The war power of the United States, like its other powers … is subject to applicable constitutional limitations’,….To recognize that military orders are ‘reasonably expedient military precautions’ in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war.

Amen.

Restore Economic Liberty

The Supreme Court has long since given the States and the central government almost unlimited authority to dictate economic activity. In the wake of Raich and Kelo there is ample commentary about the Court’s abuse of the Commerce Clause and the Takings Clause. So, I will turn here to other aspects of economic liberty that future Courts should restore.

I begin with the loss of freedom of contract. The Court upheld that freedom 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.

It would take more than that, however, to restore freedom of contract in employment relationships, which long ago gave away to mandatory unionism, the minimum wage, and various other impediments to employment-at-will. A libertarian Court would do the right thing by throwing out the Wagner Act and its various offshoots, including the minimum wage, then turn its sights on affirmative action.

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.

Nebbia has got to go. The reversal of Nebbia, accompanied by the reversal of Kelo, would prevent much of the economic harm that is done by State and local governments.

Also under this head, there is the anti-trust movement. It waxes and wanes, but when it waxes it does great harm to invention, innovation, and entrepreneurship — the engines of economic progress. The prospect of earning inordinate profits entices inventors, innovators, and entrepreneurs to take financial risks in an effort to develop and market goods and services that enrich lives. The realization of large profits encourages competition — direct competition by offerors of equivalent goods and services, and indirect competition by offerors of substitutes. A libertarian Court would agree with my analysis and vitiate the Sherman Antitrust Act and the Clayton Antitrust Act as invalid extensions of federal power.

Finally — for now — a truly bold and principled Court would enforce the Constitution’s express limitation of Congress’s power in Article I, Section 8, by striking down or reining in the regulatory-welfare state, which is embodied in such institutions as the Social Security Administration, Federal Trade Commission, Federal Communications Commission, and Food and Drug Administration, to name but a few. (For much more, read this, this, this, this, this, this, this, this, this, this, this, this, and this, and follow the links and sources cited therein.)

To be continued.

Brian Leiter Is an Idiot

Brian Leiter,* a lawprof at the University of Texas, writes:

Why is it even remotely relevant what [the] words [of the Constitution] meant when the Constitution was adopted? The right has been pushing this non-sequitur for a couple of decades now, but they still have no answers to the simplest questions about the legal or moral relevance of the “original meaning” or “original intent” of Constitutional provisions. Those who produced the “original” meanings have no claim of democratically sanctioned authority over us.

Hmmm… I recently came upon similar words, in Lysander Spooner’s 1870 essay, “The Constitution of No Authority.” Spooner’s anarchistic thesis is that the Constitution never was and never will be binding because it isn’t a voluntary contract entered into by those presumed to be bound by it. That is, by Spooner’s reckoning, the Constitution was simply imposed on us by Madison and his cronies.

What Leiter the Lefty and Spooner the Anarchist fail to grasp is that the binding nature of the Constitution’s original meaning is implicit in the fact that it can be amended. The Framers’ willingness to submit their work to emendations proves that the Constitution, as it was then understood, was meant to be binding in perpetuity, unless and until those who came later chose to amend it in order to change its meaning. Acceptance is implied consent.

Leiter presumably objects to the notion of implied consent (if it has crossed his mind) because the process of amending the Constitution relies on supermajorities. That’s “undemocratic,” don’t you know? I wonder how Leiter would feel if a mere majority of the Texas legislature were to strip him of his cushy professorship? That would be democratic, after all.

I’m sure that with his professorship at stake Leiter would prove himself a hypocrite about democracy, just as he has proved himself a hypocrite about the concept of original meaning, which he accepts when it suits him:

Suppose the legislature prohibits the killing of “fish”” within 100 miles of the coast, intending quite clearly (as the legislative history reveals) to protect whales, but not realizing that “fish” is a natural kind term that does not include whales within its extension. The new theory of reference tells us that the statute protects sea bass but not whales, yet surely a court that interpreted the statute as also protecting whales would not be making a mistake. Indeed, one might think the reverse is true: for a court not to protect whales would be to contravene the will of the legislature, and thus, indirectly, the will of the people.

Actually, it’s all about original meaning, isn’t it? But Leiter’s views about original meaning seem to depend very much on whose whale is being harpooned.
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* Our hero:

The Last Straw?

UPDATED BELOW

This decision, in Kelo v. City of New London, coming on top of the decision in Raich, drives me to the edge of despair:

Supreme Court Rules Cities May Seize Homes

WASHINGTON – A divided Supreme Court ruled Thursday that local governments may seize people’s homes and businesses against their will for private development in a decision anxiously awaited in communities where economic growth often is at war with individual property rights.

The 5-4 ruling — assailed by dissenting Justice Sandra Day O’Connor as handing “disproportionate influence and power” to the well-heeled in America — was a defeat for Connecticut residents whose homes are slated for destruction to make room for an office complex. They had argued that cities have no right to take their land except for projects with a clear public use, such as roads or schools, or to revitalize blighted areas.

As a result, cities now have wide power to bulldoze residences for projects such as shopping malls and hotel complexes in order to generate tax revenue.

The state is in the saddle and its steed is trampling liberty with abandon.

UPDATE: Some would blame today’s market drop on the price of crude:

Stocks slump after oil taps $60
Dow posts biggest one-day drop in more than 2 months

But a look at the intraday chart suggests that the selloff began just after the news of the Court’s decision in Kelo. It’s bad for people and bad for business (which also makes it bad for people).

State and local governments now have the power to shut down any business on any pretext that can be labelled a “public purpose.” The regulatory hazards of doing business have just been magnified and the trajectory of economic growth has been pushed downward, again, in yet another blow to liberty. It began, in earnest, about 100 years ago. And there’s no letup in sight.

The Consequences of Roe v. Wade

From a post at Right Reason by Francis Beckwith (paragraph break and emphasis added by me):

A 1997 article in The New Republic, a magazine whose editorial position is generally supportive of abortion-choice, cites the work of Ruth Padawer, a staff writer for the local Bergen County, New Jersey, newspaper, The Record: “she called local clinics, asked how many [partial-birth abortions] they performed, did some math and wrote up her conclusions: `Interviews with physicians who use the method reveal that in New Jersey alone, at least 1,500 partial-birth abortions are performed each year, three times the supposed national rate. Moreover, doctors say only a minuscule amount are for medical reasons.'” (William Powers, “Partial Truths,” The New Republic [March 24, 1997]: 19)

Dr. Hakell’s practice and Ms. Padawer’s story were confirmed by a stunning confession by Ron Fitzsimmons, then-executive director of the National Coalition of Abortion Providers. Since 1995, when the debate over partial-birth abortion began, Fitzsimmons and his abortion-choice colleagues had claimed that partial-birth abortion was extremely rare (about 450 per year) and performed only in late-term pregnancy for serious reasons such as severe fetal deformity and to save the life of the mother. In 1997, Fitzsimmons, on an episode of ABC News’ “Nightline” admitted, in an answer to Ted Koppel’s question, “[W]hat were you lying through you teeth about?,”: “When I said that the procedures were performed only in about 450 cases and only in those severe circumstances. That was not accurate. But we have no apologies for this procedure.” (Ibid) According to The New Republic’s account, “Fitzsimmons tried, several times, to tell Koppel that, in fact, 3,000 to 5,000 partial-birth abortions were performed every year on fetuses twenty weeks or older; and, of course, only 500 to 750 were performed for reasons of maternal health in the third trimester.” (Ibid) Fitzsimmons told the New York Times that “in the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along” and is “performed far more often than his colleagues have acknowledged.” (David Stout, “An Abortion Rights Advocate Says He Lied About Procedure,” New York Times [February 26, 1997]: A11)

A perfect illustration of the slippery slope down which Roe v. Wade has led us. For more about the dangers of state-sponsored eugenics, read this and follow the links.

Raich and the Rule of Law

Outrage abounds in liberal and libertarian circles as the U.S. Supreme Court decides Gozales v. Raich thusly:

California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions. The District Court denied respondents’ motion for a preliminary injunction, but the Ninth Circuit reversed, finding that they had demonstrated a strong likelihood of success on the claim that the CSA is an unconstitutional exercise of Congress’ Commerce Clause authority as applied to the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient’s physician pursuant to valid California state law. The court relied heavily on United States v. Lopez, 514 U. S. 549, and United States v. Morrison, 529 U. S. 598, to hold that this separate class of purely local activities was beyond the reach of federal power.

Held: Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law….

Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established. See, e.g., Perez v. United States, 402 U. S. 146, 151. If Congress decides that the ” ‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class….Of particular relevance here is Wickard v. Filburn, 317 U. S. 111, 127-128, where, in rejecting the appellee farmer’s contention that Congress’ admitted power to regulate the production of wheat for commerce did not authorize federal regulation of wheat production intended wholly for the appellee’s own consumption, the Court established that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity….

[I]n both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for the Court has often reiterated that “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez, 402 U. S., at 154. Moreover, the Court emphasized that the laws at issue in Lopez and Morrison had nothing to do with “commerce” or any sort of economic enterprise. See Lopez, 514 U. S., at 561; Morrison, 529 U. S., at 610. In contrast, the CSA regulates quintessentially economic activities: the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational means of regulating commerce in that product. The Ninth Circuit cast doubt on the CSA’s constitutionality by isolating a distinct class of activities that it held to be beyond the reach of federal power: the intrastate, noncommercial cultivation, possession, and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law. However, Congress clearly acted rationally in determining that this subdivided class of activities is an essential part of the larger regulatory scheme. The case comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the CSA’s findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim….

Justice Thomas, in a strong dissent, gives the majority a lesson in constitutional law:

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

As I explained at length in United States v. Lopez, 514 U. S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines…. The Clause’s text, structure, and history all indicate that, at the time of the founding, the term ” ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.”…Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture….Throughout founding-era dictionaries, Madison’s notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term “commerce” is consistently used to mean trade or exchange–not all economic or gainful activity that has some attenuated connection to trade or exchange….The term “commerce” commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public….

Even the majority does not argue that respondents’ conduct is itself “Commerce among the several States.”…Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California–it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that “commerce” included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

On this traditional understanding of “commerce,” the Controlled Substances Act (CSA)…regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market–intrastate or interstate, noncommercial or commercial–for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.

More difficult, however, is whether the CSA is a valid exercise of Congress’ power to enact laws that are “necessary and proper for carrying into Execution” its power to regulate interstate commerce….

In McCulloch v. Maryland,…this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”…

The Commerce Clause was meant to prevent the States from restricting or distorting the terms of trade across their borders. The Commerce Clause was not meant to give the central government the power to dictate what goods may be manufactured, how those goods should be made, or how businesses must be operated. Yet, in a long string of decisions leading up to Raich, the Supreme Court had granted those sweeping powers to the central government.*

Now, with its decision in Raich, the Supreme Court has handed the central government the power to regulate anything it wants to regulate — period. Congress can drop the pretense that it is regulating interstate commerce and simply tell us how to live our lives. As Justice Thomas puts it in his dissent, “the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.” Justice Thomas continues:

This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

A mockery wrapped in a travesty inside a tragedy.
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* For an analysis of Raich and its precedents, see this post by Lawrence Solum (Legal Theory Blog). Solum concludes by saying this:

It looks like Raich is a landmark decision that signals the end of the New Federalism [of Lopez and Morrison] as a significant limit on the powers of Congress.

Tragic, but true.

The Wrong Case for Judicial Review

I have defended judicial review, albeit reluctantly, on several occasions.* But I have never defended judicial review as a way to make law, which is the ground on which Erwin Chemerinsky stands in the current debate at the Legal Affairs Debate Club: Should We Get Rid of Judicial Review? For example, in one posting Chemerinsky responds to his opponent, Mark Tushnet, as follows:

I do have substantive value preferences. These include that the Supreme Court was right in ordering desegregation and striking down Jim Crow laws, in protecting reproductive privacy including abortion rights, in finding a right to privacy for consenting adults in their bedroom.

The catch is that the Supreme Court’s decisions ordering desegregation (Brown v. Board of Education), legalizing abortion (Roe v. Wade), and finding various zones of privacy (e.g., a right to buy contraceptives in Griswold v. Connecticut; a right to commit homosexual acts in Lawrence v. Texas) were based on extra-legal, sociological flim-flam and tortured readings of the Constitution. Why? Because the majority in each case wanted to make law, not apply the Constitution.

You may like the outcomes in Brown v. Board of Education, Roe v. Wade, Griswold v. Connecticut, and Lawrence v. Texas. 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. 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.

Chemerinsky’s defense of judicial review is opportunistic. He wants a Court that will make his kind of law, not a court that will apply the meaning of the Constitution to the law. We need judicial review to hold legislatures and executives in check, but it must be judicial review that is grounded in the meaning of the Constitution. As I argued here:

Something resembling [liberty] will come about only if a Republican president, aided by a strongly Republican Senate, is able to stock the courts with judges who are committed to the restraint of government power — at all levels of government. (Janice Rogers Brown is that kind of judge.)

Certainly not all decisions by all Republican appointees to the bench will satisfy all libertarians, many of whom seem to focus on narrowly tailored “rights,” such as abortion and gay marriage (both of which are in fact threats to liberty, as I argue here and here). But by siding with the Left on such issues, libertarians effectively abjure more basic rights — rights that broadly affect the ability of most Americans to pursue happiness — such as freedom of speech, freedom of association, and freedom of contract.

In the real world there are real choices. The real choice for libertarians is between what seems “best” for a few and what is actually “better” for the many. I choose the latter, without hesitation.

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* Links to my previous posts about judicial review:

When Must the Executive Enforce the Law?

More on the Debate about Judicial Supremacy

Another Look at Judicial Supremacy

Judicial Interpretation

Is Nullification the Answer to Judicial Supremacy?

The Alternative to Nullification

No Way Out?

I Dare Call It Treason

The New York Times today reports on a CIA cover operation. Winds of Change summarizes:

Today’s New York Times provides intimate detail on the charter flights used by the CIA to ferry prisoners across the globe. The names of the charter companies are disclosed. The types of aircraft flown are revealed. The points of departure and destinations of these flights are stated. There is even a picture of one of the charter craft, with the identification number of the aircraft in full display.

All of this is extremely valuable to al Qaeda members who may have an interest in rescuing, or if deemed appropriate, conducting a suicide attack against suspected extraction flights. A successful attack resulting from this story can endanger the lives of CIA, security and civilian personnel involved in these missions, as well as deprive the intelligence and military communities of valuable information that can be gained from interrogations….

What exactly is the purpose of the New York Times in reporting on sensitive issues such as these? Do they even care about the consequences of making such information pubic? It appears the editors of the New York Times feel that breaking a titillating story about sensitive CIA operations is much more important than national security and the lives of those fighting in the war. All to our detriment.

If the Times‘s reporting isn’t “aid and comfort” to the enemy, I don’t know what is. As I wrote here:

The preservation of life and liberty necessarily requires a willingness to compromise on what — in the comfortable world of abstraction — seem to be inviolable principles. For example:

The First Amendment doesn’t grant anyone the right to go on the air to compromise a military operation by American forces…

The NYT article about a CIA operation being conducted in support of an authorized war amounts to the same thing. The right to publish cannot be absolute and should not exempt anyone from a charge of treason.

Reconciling the Reconcilable

UPDATED BELOW, AT 6:26 PM

Slate‘s Will Saletan accuses President Bush of hypocrisy and challenges him to reconcile his statements about stem-cell research and the death penalty; these statements, for example:

“The President is committed to medical research that does not violate the dignity of human life or exploit one human life for the benefit of another.”

—White House fact sheet, State of the Union, Feb. 2, 2005

“I happen to believe that the death penalty, when properly applied, saves lives of others. And so I’m comfortable with my beliefs that there’s no contradiction between the two.”

—Bush, April 14, 2005

Such statements are reconciled easily, by inserting the understood but unspoken word “innocent” in the proper places:

“The President is committed to medical research that does not violate the dignity of human life or exploit one innocent human life for the benefit of another.”

“I happen to believe that the death penalty, when properly applied, saves innocent lives….”

It’s easy to understand the President’s point, if you are willing to do so.

UPDATE: Eugene Volokh (he of the eponymous Conspiracy) points out that the White House and the President did make the point about innocence in the very transcripts linked to by Saletan. But Saletan selectively (and dishonestly) omitted those portions of the transcripts.

Abortion and Crime

REVISED 05/15/05 (9:11 PM)

Several months ago, in “How to Fight Crime,” I said:

According to an article in today’s NYTimes.com, “Most Crimes of Violence and Property Hover at 30-Year Lows.” Three important things happened after 1995 — the year in which the rate of violent crime began to drop markedly. First, the incarceration rate continued to rise: Persistence pays off. Second, the percentage of the population that is male and 20-24 years old continued to drop, in keeping with the general aging of the population. (Age usually brings with it a greater degree of maturity, stability, and aversion to committing criminal acts.) At the same time, spending on criminal justice functions (police, corrections, and courts) continued to rise, especially spending on police.

I’m sure there are other causal factors, but those are probably the big ones. The first and third of those factors — incarceration and spending on the criminal justice system — go hand in hand. And they are the public-policy weapons of choice in a society that values individual responsibility.

Then Freakonomics was published. In it economist Steven Levitt challenged that orthodoxy. Here’s how The Washington Post reported Levitt’s findings about the drop in crime:

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 .

Well, Steve Sailer (among others) has attacked Levitt’s findings:

First, Levitt’s theory is predicated — at least publicly — on abortion reducing the proportion of “unwanted” babies, who are presumed to be more likely to grow up to be criminals. The empirical problem with this is that legalization (which occurred in California, New York, and three other states in 1970 and nationally in 1973), didn’t put the slightest dent in the illegitimacy rate, which is, by far, the most obvious objective sign of not being wanted by the mother and father, and has been linked repeatedly with crime:

You’ll note that the growth in the illegitimacy rate didn’t start to slow down until the mid-1990s when the abortion rate finally went down a considerable amount.

My article offers a simple explanation, drawn from Levitt’s own research, of why legal abortion tends to increase illegitimacy.

Second, the acid test of Levitt’s theory is that it predicts that the first cohort to survive being culled by legal abortion should have been particularly law-abiding. Instead, they went on the worst teen murder rampage in American history. Here’s a graph showing the homicide rate for 14-17 year olds, and below each year is the average birthdate of the 14-17 year old cohort.

For example, the 14-17 year olds in the not particularly murderous year of 1976 were, on average, born about 1960 (i.e., 1976 – 16 years of age = 1960), so they didn’t “benefit” from being culled by legalized abortion the way that the 14-17 years olds during the peak murder years of 1993 and 1994 should have benefited, according to Levitt.

In contrast, the homicide rate for the 25 and over cohort (none of whom enjoyed the benefits of legalized abortion) was lower in 1993 than in 1983.

Levitt seems to have a good answer to Sailer’s second point. But Sailer has the better of it on the first point, which is the critical one to Levitt’s case. As Sailer puts it in his American Conservative article:

The most striking fact about legalized abortion, but also the least discussed, is its pointlessness. Levitt himself notes that following Roe, “Conceptions rose by nearly 30 percent, but births actually fell by 6 percent …” So for every six fetuses aborted in the 1970s, five would never have been conceived except for Roe! This ratio makes a sick joke out of Levitt’s assumption that legalization made a significant difference in how “wanted” children were. Indeed, perhaps the increase in the number of women who got pregnant figuring they would get an abortion but then were too drunk or drugged or distracted to get to the clinic has meant that the “wantedness” of surviving babies has declined.

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 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.

The Legitimacy of the Constitution

REVISED 05/10/05 (9:18 AM)

Thanks to a pointer from Randy Barnett (The Volokh Conspiracy), I read Lysander Spooner’s 1870 essay, “The Constitution of No Authority.” Spooner’s anarchistic thesis is that the Constitution never was and never will be binding because it isn’t a voluntary contract entered into by those presumed to be bound by it. That is, by Spooner’s reckoning, the Constitution was simply imposed on us.

Spooner’s right: The Constitution was simply imposed on us by those who actually consented to it. But so what? That doesn’t necessarily make the imposition of the Constitution a bad thing. Consider this:

There are two competing systems: one would tax everyone in order to protect people from murderers; the other would require everyone to rely on self-defense, which would be inadequate in most instances.

Those who wish neither to murder nor to be murdered comprise 80 percent of the population, whereas the other 20 percent are of a suicidally murderous bent.

Murderous proclivities are unknowable in advance, so that it’s impossible to create a society that consists solely of non-murderous people and erect a barrier between that society and a society of murderous people.

A powerful fraction of the 80 percent, knowing that they cannot identify the murderers in advance, make a rule that says “murder is wrong and will be punished.”

The powerful minority then collects enough taxes to defray the cost of protecting everyone from murder — even potential murderers. The protection enables non-murderous persons to go about their lives without being constantly on guard. And many non-murderous persons who might have been murdered are not murdered, though their identity is unknowable and they cannot be taxed additionally for the service.

Thus all non-murderous persons become more productive members of society. There is a positive net benefit for everyone — except persons with a strong taste for murdering others.

There’s nothing wrong with that outcome, unless you’re a murderer — or an anarchist. It strikes me as a good thing to impose a set of rules designed to protect life, liberty, and property from those who would deprive others of life, liberty, and property.

The Constitution is such a set of rules. It’s an instrument of self-defense. Even anarchists believe in self-defense.

It’s true that the Constitution isn’t always properly interpreted or enforced, but the alternative is no common set of rules — a state of anarchistic bliss in which Spooner and his ilk repose misplaced faith. As we have seen time and time again — especially in America’s cities — lawlessness spreads like a cancer when the state does not or cannot enforce the rule of law. The ranks of the “20 percent” swell and a barbarous minority holds sway over a peaceable majority. And there’s never an anarchist cop around when you need one.

Redeeming the Promise of Liberty

These are excerpts of Part VII of my series, “Practical Libertarianism for Americans.”

I ended Part VI by saying that

liberty has been vanquished in the mistaken belief (or hope) that government can effectively and efficiently make us better off, salve our woes, and put an end to social and racial divisions. To those ends, the governed and their governors, walking hand in hand, have taken liberty for a stroll down a slippery slope. Every step they have taken down that slope has made more problematic our journey back up the slope.

Is it possible to journey back up the slope — even part of the way — toward something resembling liberty? And if so, by what route?…

At this moment in history, federalism seems the most promising option because the Left is now beginning to understand that the power of the federal government may be used not only to advance its agenda but also to thwart that agenda. Leftists, like conservatives and pragmatic libertarians, may be willing to settle for a “good” solution rather than hold out for the “best” of all possible worlds. But, as I will explain, the way to federalism isn’t through a collaboration between Left and Right….

The Left’s vision of federalism is to devolve the central government’s acquired anti-libertarian powers to somewhat less remote commissars at the State and local level. The Left simply isn’t to be trusted as a partner in the shaping of a new federalism. A pro-libertarian federalism would not only limit the power of the central government but would also limit the power of State and local governments to advance the Left’s anti-libertarian agenda.

The only way to advance pro-libertarian federalism is to ensure that the Left neither controls the central government nor has little influence over its policies. This is especially true of the Supreme Court….

Something resembling pro-libertarian federalism will come about only if a Republican president, aided by a strongly Republican Senate, is able to stock the courts with judges who are committed to the restraint of government power — at all levels of government….

CLICK HERE TO READ THE FULL POST.

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