News headlines:
U.S. Supreme Court declines to hear Terry Schiavo Case
5-4 Supreme Court abolishes juvenile executions
Category: Constitution – Courts – Law – Justice
Taking Exception
Aaron Margolis, a co-blogger at the late, unlamented Blogger News Network, once wrote:
The operative question in this case: should Michael Schiavo’s rights as a husband be reduced or eliminated because his wife’s parents do not agree with his legal right to make medical decisions on her behalf? The point of view of some conservatives on this issue is, I believe, incorrectly predicated. While we may argue Terri Schiavo’s right to live or die ad infinitum, the broader issue is being ignored; it is not our choice….
This is not a pro-life related issue; Terri Schiavo is not an unborn child. Therefore, this aspect should not be brought into the picture. The fundamental issue should be about who has the ultimate right to make a decision, medical or otherwise, of this nature….
Conservatives fight hard to preserve not only the sanctity of marriage, but the idea of individual responsibility and independence of action. However, it would appear that as concerns this matter, some of our number have forgotten these basic tenets. Where may this lead us, and what should conservatives being saying or doing, ultimately? As with our defense of the sacrosanct right of free speech, while we may not agree with Michael Schiavo, we should be willing to support his right to act in accordance with his rights and obligations.
But the Schiavo case is about life, not about marriage. As I have written, “think 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.” (See here, also.) If Michael Schiavo succeeds in his court-aided quest to end his wife’s life, the slope will become noticeably slicker.
I’m an ardent libertarian who’s a staunch conservative when it comes to protecting the lives of the innocent. Without life, there is no liberty, no pursuit of happiness.
Unlimited Government?
Well, that’s what J. Peter Byrne seems to advocate in his online debate with Richard Epstein about Kelo v. New London (discussed in an earlier post):
[In the city of New London’s taking,] I see self-government, which while never pure, gives most of us a voice and is capable of innovation….I think that the democratic process provides the best and most legitimate accountability, especially if it is amenable to reform from above, as municipal decision making is by state statutes. The abuses in eminent domain can be addressed through statutes improving procedures and changing the measure of compensation.
Not incidentally, I think New London’s plan here is quite reasonable, so far as I understand it. They are redeveloping some 90 acres, strategically located between a new Pfizer research facility—the largest private investment in New London in many years—and the water; they are constructing a new park and providing substantial infrastructure and environmental remediation in their best shot to encourage private development of offices, hotels, and residences. The plaintiffs’ property lies in the middle of the 90 acres and in a flood plain. The elevation of the land needs to be raised for development and that cannot be done with functioning inholdings. This is not warehousing, but a sensible, long term development plan, which the people of New London have knowingly approved and financed.
In other words, government can do anything it wants to do, as long as it is done in the name of “social progress” or “economic development” — and as long as it pretends to draw its legitimacy from the “people.” By Byrne’s rule, government is entitled to tell us where to work, where to live, how many children to have, and on and on. If government is so “smart,” why don’t we just let it run all of our businesses and lives? We could then stop pretending that we live in something approximating liberty.
It all reminds me very much of Hitler’s abuse of German law to advance his repugnant agenda. Just go through the motions and what do you get? Absolute power of the kind that makes mincemeat of schnooks like Byrne.
Support Homeschooling
WriteWingNut, a homeschooler and co-blogger at Blogger News Network, writes about “Homeschooling and Socialization.” There’s much to be said in favor of homeschooling as an antidote to public education. But teachers’ unions and their allies (notably the Democrat Party) have a lot of political clout, which they wield almost ceaselessly in an effort to undermine homeschooling.
Just take a look at the website of the Home School Legal Defense Association (HSLDA), for a taste of the legal hurdles that homeschoolers face or are threatened with. Here’s what HSLDA is and does:
Home School Legal Defense Association is a nonprofit advocacy organization established to defend and advance the constitutional right of parents to direct the education of their children and to protect family freedoms. Through annual memberships, HSLDA is tens of thousands of families united in service together, providing a strong voice when and where needed.
HSLDA advocates on the legal front by fully representing member families at every stage of proceedings. Each year, thousands of member families receive legal consultation by letter and phone, hundreds more are represented through negotiations with local officials, and dozens are represented in court proceedings. HSLDA also takes the offensive, filing actions to protect members against government intrusion and to establish legal precedent. On occasion, HSLDA will handle precedent-setting cases for nonmembers, as well.
HSLDA advocates on Capitol Hill by tracking federal legislation that affects homeschooling and parental rights. HSLDA works to defeat or amend harmful bills, but also works proactively, introducing legislation to protect and preserve family freedoms.
HSLDA advocates in state legislatures, at the invitation of state homeschool organizations, by assisting individual states in drafting language to improve their homeschool legal environment and to fight harmful legislation.
HSLDA advocates in the media by presenting articulate and knowledgeable spokesmen to the press on the subject of homeschooling. HSLDA staff members are regularly called upon for radio, television, and print interviews, and their writings are frequently published in newspapers and magazines across the country. HSLDA’s own bimonthly magazine, The Home School Court Report, provides news and commentary on a host of current issues affecting homeschoolers. And its two-minute daily radio broadcast, Home School Heartbeat, can be heard on nearly 500 radio stations.
HSLDA advocates for the movement by commissioning and presenting quality research on the progress of homeschooling. Whether it’s in print, from the podium, or on the air, HSLDA provides insightful vision and leadership for the cause of homeschooling.
You can support HSLDA’s worthy efforts by shopping online through its Clicks for Homeschooling page:
Did you know that you can support homeschooling just by using the links on this page or special QuickLinks set from this page to get to your favorite online retailers? That’s right, the online retailers on this page will give a portion of your online purchase amount back to HSLDA for the work of the Home School Foundation. So next time you want to shop online, please come to this page first or use one of our QuickLinks to get to the online retailer. It’s easy and you will be helping the Home School Foundation support homeschooling through its Special Needs Children’s Fund, Widows Curriculum Scholarship Fund, and its other funds.
The list of participating retailers includes many familiar names (e.g., Amazon.com, Circuit City, Home Depot, Toysrus.com, and Wal-Mart.com). From now on, I’m going first to the Clicks for Homeschooling page before I shop online.
(Thanks to my daughter-in-law for the tip about HSLDA.)
Can Your Town Take Your Home?
It’s a debate about eminent domain at Legal Affairs Debate Club:
This week, the Supreme Court hears the case of Susette Kelo and her neighbors in the Fort Trumbull neighborhood of New London, Conn. [Kelo v. New London]. The city intends to evict these residents and develop their waterfront neighborhood claiming that doing so will enhance the city’s tax-base.
The Fifth Amendment describes the power of eminent domain as a taking for public use with fair compensation. Kelo and her neighbors argue that expropriation of their property for a redevelopment project cannot be a “public use” if private developers eventually will possess the land.
Is New London taking the principle of eminent domain too far?
The debaters are Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law at the University of Chicago, and J. Peter Byrne, Professor of Law at Georgetown University. Round 1 is over and it’s already a TKO, in favor of Epstein. But Byrne is so groggy that he doesn’t know that the fight is over.
Talk about being mentally flabby, here’s Byrne’s final punch of round 1:
Judgments about the wisdom of the project should be left to the people of Connecticut and New London, where the constitution places it.
The Constitution, quite obviously, places the judgment in the hands of the U.S. Supreme Court. Whether the Court will do the right thing and find for Kelo is another matter. If Byrne is to be believed (a dubious proposition), U.S. Supreme Court precedent is on the side of New London. Fortunately, perhaps, there’s more recent and directly applicable precedent in the reversal of Poletown.
Free Speech and Limited Government
As I said in an earlier post, I defend Ward Churchill’s right to speak his mind, just as I defend the right of Hamilton College to decide whom to invite and disinvite to its campus. By the same token, it is my right to say that Ward Churchill is a despicable person and an obtuse moral relativist who seems bent on undermining the system that enables him to spew his vile opinions. (See for yourself.)
With that out of the way, I want to take up this statement by Minnie Quaich, writing at FIRE’s The Torch:
Again and again, we find that anything that can be offensive, inappropriate, and counterproductive ravings to some might very well be provocative, useful, and critical discourse to others. The widely differing and competing reactions to even the most controversial expression like Churchill’s prove how vital it is to protect freedom of speech in this country, on campus, and beyond.
Wonderful. But what about speech that fosters the restriction of speech,* if not the wholesale suppression of liberty? Suppose that a compelling speaker is able to convince a supermajority of the populace that it’s dangerous to have people running around saying certain things in public? Suppose that supermajority is able to pass a constitutional amendment that restricts speech? Or just suppose that government — acting at the behest of “the people” — effectively does the same thing by statutorily restricting certain forms of speech (as in campaign-finance “reform”)?
In other words: Free speech cannot flourish unless government is restricted to its “nightwatchman” role. Yet free speech seems inevitably to produce an intrusive government.** And an intrusive government seem inevitably to issue restrictions on speech, among other forms of liberty.
Before you draw the wrong conclusion, consider this: If government could declare certain topics (e.g., the role of government) off-limits in the name of liberty, I have no doubt that government would be even more intrusive and restrictive of liberty.
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*To be clear about it, I don’t consider the following to be improper restrictions of speech:
- non-governmental criticism of speech
- non-governmental ostracism of persons or entities whose speech is disagreeable
- the owner of private property dictating what may be said on his property
- disciplining an employee for saying things that may damage the employer’s business
- prosecuting directly injurious speech (e.g., slander, libel, and intimidation).
** The existence of a written constitution that is supposed to restrict the scope of government seems to be ineffectual in the face of free speech. It is easy to coax the genie of big government out of the bottle, but damnably difficult to coax him back into the bottle.
Favorite Posts: Academic Freedom and Freedom of Speech
The Limits of Self-Defense
Although I am an advocate of preemptive warfare (see here, for example), I am firmly opposed to the notion of preemptive criminalization, as in the movie Minority Report. What I didn’t know is that preemptive criminalization (like involuntary euthanasia) has already arrived in Europe, according to Stephen Sedley, writing in the London Review of Books:
What is the rationale of objection to a comprehensive national DNA database?….
There remains the concern about possible abuse, that the police might in future use the data not merely for detection but for personality profiling – especially since one of the purposes already sanctioned by law is crime prevention. I think this concern is real. A number of states – and there are indications that England and Wales may join them – have begun to allow the indefinite detention of sexual offenders on the basis of predicted behaviour.
Frightening, especially because it might be picked up as a “liberal” cause in the United States.
Practical Libertarianism for Americans: Addendum to Part II
This is a brief excerpt of the addendum to Part II of a nine-part work in progress. I welcome constructive criticisms and suggestions. Please send an e-mail to: libertycorner-at-sbcglobal-dot-net .
NOTES ON THE STATE OF LIBERTY IN AMERICAN LAW
As noted in Part II, I am using “liberty” to encompass the full spectrum of liberty rights, which the Founders captured in the phrase “life, liberty, and the pursuit of happiness.” This fragmentary addendum is a provocative gloss on that evocative phrase….
The great forest of American law — which imperfectly sheltered life, liberty, and the pursuit of happiness until the 1930s — has since been laid waste in the pursuit of various Devils, among them: self-defense (at home and abroad), personal responsibility (the main antidote of poverty, illiteracy, and crime), lower-class vices (smoking), (white) racism, (male) sexism, “offensive” (non-leftish) speech, “excessive” political spending and speech (especially by non-incumbents), all forms of pollution (except those necessary to finance a yuppie’s lifestyle and to propel his SUV), and life’s uncertainties in general. Now we are in the open, practically defenseless against the biggest Devil of all — the state — which dictates how much of life, liberty, and happiness we may enjoy….
Going Too Far with the First Amendment
Michael C. Dorf writes at FindLaw.com about “Why It’s Unconstitutional to Teach ‘Intelligent Design’ in the Public Schools, as an Alternative to Evolution.” Dorf — siding with the ACLU — argues that the Dover, Pennsylvania, School Board has violated the First Amendment’s Establishment Clause “by mandating that students in public school biology classes be taught the theory of ‘intelligent design’ as an alternative to evolution.”
The Establishment Clause says that “Congress shall make no law respecting an establishment of religion….” That provision, with many other parts of the Bill of Rights, became binding on the States by “incorporation” under this provision of the Fourteenth Amendment:
…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
So far, so good. But Dorf then goes on to argue the the courts should test the School Board’s mandate by asking
whether intelligent design is, in fact, a scientific theory at all. It should do so, not because of any general obligation on the part of schools to teach science correctly, but simply because if intelligent design is not science, then the inference is almost inescapable that the state is impermissibly acting for the purpose of fostering a religious viewpoint.
Think of the fine mess we’d be in if the courts were to rule against the teaching of intelligent design not because it amounts to an establishment of religion but because it’s unscientific. That would open the door to all sorts of judicial mischief. The precedent could — and would — be pulled out of context and used in limitless ways to justify government interference in matters where government has no right to interfere.
It’s bad enough that government is in the business of funding science — though I can accept such funding where it actually aids our defense effort. But, aside from that, government has no business deciding for the rest of us what’s scientific or unscientific. When it gets into that business, you had better be ready for a rerun of the genetic policies of the Third Reich.
Rights and Obligations
When it comes to the origin of rights,* I’m with Maxwell Borders, who — in the course of a long, delightful post at Jujitsui Generis — says this in reply to another blogger:
…“Real rights are conferred by political institutions” is not the same as saying “real rights are conferred by a sovereign.” The former expresses the complex relationship in a social contract between agents, their laws, and their government. So, yes, they are both conferred and protected by such institutions, unless you are one of these anarcho-capitalists who lives in a fantasy world where private Team Americas will go off and protect us from the baddies….
I would put it just a bit differently: Human beings — having a primordial yearning for rights — form a political institution and adopt a constitution for the purpose of defining and securing those rights, as they define them through bargaining.** The U.S. Constitution, as amended, therefore amounts to a contract. (It’s an unusual sort of contract, to be sure, in that breaches are hard to remedy and those who inherit it can amend it only by an arduous process.)
A contract that grants rights usually assigns obligations, as well. What obligations does the U.S. Constitution implicitly or explicitly assign to Americans, as citizens? Here’s my list, in no particular order:
- Obey the law, generally
- Pay taxes
- Accept the money of the United States as legal tender
- Respect patents, copyrights, and other recognized forms of intellectual property
- Refrain from rebellion and insurrection
- Serve in the armed forces (if the law requires it)
- Refrain from committing treason
- Serve on juries
- Do not take anyone into slavery or involuntary servitude.
The list doesn’t seem onerous. Then I think about some of the laws we must obey and the burden of taxation we bear. That line of thinking enables me to understand what drove a brave band of men to rebel against British rule, create a new nation, and establish the Constitution — which has been so badly breached.
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* I’ve addressed the nature and origin of rights in several posts at Liberty Corner: here, here, here, here, here, and here. (Please overlook the somewhat sloppy treatment of natural rights in the earlier posts.)
** Of course, things don’t always work out as intended. See here, here, and here, for example.
No Way Out?
The three branches of the federal government, individually and severally, have been harassing the Constitution since 1789, and raping it since the New Deal. When the legislative and executive branches aren’t conspiring to infuse new meaning into the Constitution, the judicial branch seems to take up the slack. What to do?
Secede and form a more libertarian union? Secession is an appealing idea (for Red-Staters), if an unrealistic one. There is the idea of “taking over” a State in order to create a haven of liberty, but that idea — propounded by the Free State Project — seems to be going nowhere. And besides, what’s the good of taking over a State when the central government already has usurped most of the powers of the States and many of the liberties of their citizens?
Nullify disagreeable statutes and court rulings? That’s been tried, but it’s no more likely to succeed than secession. Anyway, nullification is a recipe for legal chaos. It would yield lucrative, lifetime employment for yet another army of lawyers, who would advise individuals and businesses with interests in several States as to their rights and obligations, and who would represent those individuals and businesses in endless litigation.
Strip courts of jurisdiction or invoke the doctrine of departmentalism? Those might be good solutions if courts were the only problem. But jurisdiction stripping and departmentalism, to the extent they’re constitutionally valid, leave us defenseless against legislative and executive fiat. The courts aren’t entirely useless, it’s just that you never when they’re going to stop the rape of the Constitution or join in.
Promote federalism? Well, that’s where the Supreme Court could help the cause of liberty. But to get there, the president must nominate the right judges and the Senate must confirm them. I don’t think that the left is really ready to accept devolution of power to the States (even to Blue States), especially if it seems likely that a federalism-minded Supreme Court would overturn Roe v. Wade.
That’s my list of not-so-serious and serious options for restoring the law to something resembling the meaning of the Constitution. Promoting federalism seems the most promising option, but it requires an unlikely (unholy?) alliance between left and right.
An Emerging Left-Right Consensus?
Timothy Sandefur, in his recent response to this post, said:
Now that Dole and the Bushes have almost perfected the elimination of the Goldwater faction of the GOP…there is an ever-diminishing role for us [libertarians] in that party. Some large libertarian segments, most notably Reason magazine, have simply given up on the right wing, and are overtly courting the left, hoping that social issues will draw the left into greater embrace of economic freedom. I’m really not sure whether that strategy will work—I think the left is as resolutely hostile to individualism as the conservatives are—but do we really have anything to lose? “Libertarian” has become an epithet within the controlling faction of the Republican Party. I for one am sick of it, and were it not for the war, as I’ve said, I would have voted Democrat this year. And I suspect at least some leftists will be drawn to our side if we tell our story right: if we show that the liberation of previously oppressed people must include economic liberty….
Perhaps Mr. Sandefur is on to something. Here’s Jonah Goldberg, writing at NRO yesterday:
Federalism! It’s not just for conservatives anymore! That’s right. All of a sudden, liberals have discovered federalism and states’ rights. I discovered this while listening to a recent episode of NPR’s Talk of the Nation, in which host Neal Conan and various callers discussed the idea as if some lab had just invented it….It’s not surprising that liberals would suddenly be interested in federalism, given that a sizable fraction of them think George Bush is an evangelical mullah, determined to convert America to his brand of Christianity. As conservatives have known for decades, federalism is the defense against an offensive federal government….
The problem with the last half-century of public policy is that liberals have abused the moral stature of the civil rights struggle to use the federal government to impose their worldview — not just on racial issues but on any old issue they pleased. But now, all of a sudden, because they can’t have their way at the federal level anymore, the incandescently brilliant logic of federalism has become apparent: Liberals in blue states can live like liberals! Wahoo! (Whereas, according to liberals, conservatives could never have been sincere when they talked about states’ rights; surely, they meant only to “restore Jim Crow” or some such.)
The bad news, alas, is that conservative support for federalism has waned at exactly the moment they could have enshrined the ideal in policy. Just this week, the Bush administration argued against California’s medical-marijuana law. Bush is also moving ahead toward a constitutional prohibition on gay marriage (which many conservatives, including National Review, support). After decades of arguments that Washington should stay out of education, Bush has made it his signature domestic issue.
It’s not that the White House doesn’t have good arguments for its policies. But it is impossible to restore federalism unless you start by allowing states to make decisions you dislike. Otherwise, it’s not federalism, it’s opportunism.
If large numbers of liberals (or leftists, as I prefer) begin to understand that a powerful federal government can do things they don’t like — as well as things they like — those leftists might just get on board with federalism. I imagine there are still enough pro-federalism conservatives out there to forge a formidable, pro-federalism coalition.
Now, federalism isn’t libertarianism, by any means. Some States might have strict gun-control laws and other States might have none at all, for example. But, to the extent that individual States can’t repeal the Bill of Rights and related law, federalism strikes me as a good second-best to the present regime, in which Washington seems willing and able to micro-manage almost all social and economic activity.
As I wrote here:
Libertarian purists argue that government should have almost no power. Libertarian pragmatists argue that government power should be devolved to the lowest practical level. The pragmatists’ case is the better one, given that the urge to regulate social and economic practices is especially strong where people (and votes) are concentrated….
…City dwellers prefer more government because they “need” more; country folk feel less “need” for government because they don’t rub up against each other as much as city dwellers.
Thus the ultimate argument for devolution: Push government functions to the lowest practical level and allow citizens to express their preferences by voting with their feet.
To extend the caricature, those who like guns and oppose abortion can move to Texas, and those who hate guns and approve abortion can move to New York. A typical Austinite (which I am not) might prefer New York’s policies but Austin’s weather. Well, it’s a tough choice, but at least it’s a choice.
ADDENDUM: Jesse Walker, writing at Tech Central Station on November 8 (“The War Between the Statists“) offered this bit of wisdom about federalism:
…The authoritarian conservative wants to maintain the old taboos. The authoritarian liberal wants to introduce some new ones, and he’s had a lot more success. The religious right may despise homosexuality and pornography, but the gay movement is thriving, despite last week’s losses, and porn is more freely available than ever before.
The liberal puritans, by contrast, are riding high in the media and in the courts. For many Americans, the Democrats are the party that hates their guns, cigarettes, and fatty foods (which is worse: to rename a french fry or to take it away?); that wants to impose low speed limits on near-abandoned highways; that wants to tell local schools what they can or can’t teach. There is no party of tolerance in Washington — just a party that wages its crusades in the name of Christ and a party that wages its crusades in the name of Four Out Of Five Experts Agree. Sometimes they manage to work together. I say fie on both.
Since Election Day, a series of satiric proposals for blue-state secession have been floating around the Internet. Here’s an idea for liberals looking for a more realistic political project: Team up with some hard-core conservatives and make a push for states’ rights and local autonomy. If you have to get the government involved in everything under the sun, do it on a level where you’ll have more of a popular consensus. Aim for a world where it won’t matter what Washington has to say about who can marry who and whether they can smoke after sodomy….
Does the Constitution Allow This?
The First Amendment says that “Congress shall make no law…abridging the freedom of speech, or of the press….” Great stuff. I buy it. But then there’s this, from a story at latimes.com:
On the evening of Oct. 14, a young Marine spokesman near Fallouja appeared on CNN and made a dramatic announcement.
“Troops crossed the line of departure,” 1st Lt. Lyle Gilbert declared, using a common military expression signaling the start of a major campaign. “It’s going to be a long night.” CNN, which had been alerted to expect a major news development, reported that the long-awaited offensive to retake the Iraqi city of Fallouja had begun.
In fact, the Fallouja offensive would not kick off for another three weeks. Gilbert’s carefully worded announcement was an elaborate psychological operation — or “psy-op” — intended to dupe insurgents in Fallouja and allow U.S. commanders to see how guerrillas would react if they believed U.S. troops were entering the city, according to several Pentagon officials.
In the hours after the initial report, CNN’s Pentagon reporters were able to determine that the Fallouja operation had not, in fact, begun.
“As the story developed, we quickly made it clear to our viewers exactly what was going on in and around Fallouja,” CNN spokesman Matthew Furman said.
Officials at the Pentagon and other U.S. national security agencies said the CNN incident was not an isolated feint — the type used throughout history by armies to deceive their enemies — but part of a broad effort underway within the Bush administration to use information to its advantage in the war on terrorism….
Surely the viewers of CNN included our enemies, or persons friendly to them who passed along the information broadcast by CNN.
I know the arguments about undermining the credibility of the news media — and the government — by using the media to broadcast disinformation. But those are just arguments. The fact is that the U.S. is engaged in a legal war against a determined and ruthless enemy, and the use of disinformation is a time-honored tactic of warfare. Why not risk undermining the credibility of the media — to the extent that the media have much credibility left — if it helps to win the war?
Unless CNN’s report and the news story I’ve quoted are part of a disinformation campaign, it seems that media may be undermining the war effort by revealing particular instances of disinformation and giving the enemy hints as to the shape of our disinformation campaign.
That leads to my question: Is there an interpretation of the Constitution that would make it illegal for the media to publish information that compromises military operations?
ADDENDUM: If there is a compelling governmental interest in the regulation of political speech (i.e., campaign-finance “reform”) and a compelling governmental interest in allowing publicly funded universities to pursue “diversity” (a concept that I cannot find in the Constitution), why not a compelling governmental interest in the suppression of media reports that undermine the prosecution of a constitutional war?
I’m being provocative here because I hope to draw out my host and some of his readers on this issue.
The Alternative to Nullification
In an earlier post I whimsically advanced the idea that States might nullify blatantly unconstitutional laws created through the legislative process or by judicial fiat. Andrew Jackson — to whom I usually wouldn’t defer in matters constitutional — responded to the Nullification Crisis by issuing a proclamation, in which he said:
…The ordinance [of nullification approved by South Carolina] is founded, not on the indefeasible right of resisting acts which are plainly unconstitutional, and too oppressive to be endured, but on the strange position that any one State may not only declare an act of Congress void, but prohibit its execution – that they may do this consistently with the Constitution-that the true construction of that instrument permits a State to retain its place in the Union, and yet be bound by no other of its laws than those it may choose to consider as constitutional. It is true they add, that to justify this abrogation of a law, it must be palpably contrary to the Constitution, but it is evident, that to give the right of resisting laws of that description, coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws. For, as by the theory, there is no appeal, the reasons alleged by the State, good or bad, must prevail….But reasoning on this subject is superfluous, when [the U.S. Constitution] in express terms declares, that the laws of the United States…are the supreme law of the land; and for greater caution adds, “that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” And it may be asserted, without fear of refutation, that no federative government could exist without a similar provision….
I must concede that Jackson (or his lawyers) made an effective case against nullification.
Now, where does that leave us? It leaves us with the hope (or fear, if you are of the left) that the U.S. Supreme Court — when “packed” with two or three newcomers appointed by Bush — will redouble its efforts to restore something resembling the federalism envisioned by the Framers. In the words of Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
A Crime Is a Crime
Would the murder of Matthew Shepard be any less reprehensible if it hadn’t been motivated by hatred of homosexuals? We hear from Virginia Heffernan of The New York Times:
…Elizabeth Vargas goes for broke tonight on an intellectually brave episode of “20/20” on ABC.
Ms. Vargas,…who replaced Barbara Walters as co-host of the show in September, has wasted no time before taking on a risky story: the 1998 murder of Matthew Shepard. But what’s incendiary about tonight’s program is not its topic but its argument. “20/20” takes the position that the description of this murder as an anti-gay hate crime is entirely wrong. After six years of sentimental theater, documentaries and television movies that have bolstered the hate-crime view, tonight’s program is no less than iconoclastic.
In October 1998, Mr. Shepard, a 21-year-old student at the University of Wyoming in Laramie, was found tied to a fence on the outskirts of town. He’d been pistol-whipped and left shoeless in near-freezing temperatures; he was almost dead. Friends who heard about his beating instantly began to tell reporters that he was gay and that his attack might have been an instance of gay-bashing.
Two men, Aaron McKinney and Russell Henderson, were arrested. Mr. McKinney’s girlfriend told the press that he had lashed out when Mr. Shepard came onto him. As people across the country held candlelight vigils, this became the dominant refrain: Mr. Shepard was attacked because he was gay.
Then Mr. Shepard died. His funeral was picketed by chilling figures whose placards said he deserved it. Also in attendance were antiviolence activists, who wore white angel get-ups.
As Ms. Vargas says, the crime’s stakes then came through plainly: tolerance versus hate, good versus evil. The parable drawn from the crime was supplemented with beauty shots of Mr. Shepard that made him look like a frail James Dean, and arraignment photos of Mr. McKinney and Mr. Henderson that made them look like tight-lipped white power people.
The men, however, did not have ideologies. They were full-time roofers with steady girlfriends. But Mr. McKinney was also a speed freak….According to a drug buddy interviewed by Ms. Vargas, Mr. McKinney had been on a weeklong no-sleeping bender before he murdered Mr. Shepard. Mr. Henderson says on camera that he was so worried about Mr. McKinney’s drug-induced volatility that night that he hoped to keep him drinking in a local bar until he calmed down.
Newly armed with a large-frame revolver…Mr. McKinney was hoping to commit a robbery. He was full of scattershot rage. When Mr. Shepard, who was also at the bar, asked him for a ride home, he agreed, planning to steal his wallet for drug money. Mr. Henderson went along on the drive, and after Mr. McKinney beat Mr. Shepard senseless with the gun, he tied him to a fence in a remote field. The two men then took off for town, where Mr. McKinney attacked another guy he came across, cracking the man’s skull.
Mr. Henderson eventually pleaded guilty to murder and kidnapping, while Mr. McKinney was convicted of felony murder, aggravated robbery and kidnapping. Both men are serving double life sentences. Mr. McKinney has waived his right to appeal; Mr. Henderson hopes to file a federal appeal, claiming he was never fully advised of his rights.
Mr. McKinney now says that he and his defense team cooked up a gay-panic defense – the one that said he responded violently when hit on by a man – though it wasn’t true. Mr. McKinney’s girlfriend, the early proponent of the gay-panic story, has also recanted….
…In defending himself from charges of homophobia Mr. McKinney says, noxiously, “I have gay friends,” which gives the documentary a chance for a bravura transition.
“One of McKinney’s gay friends may have been Matthew Shepard,” Ms. Vargas says in voice-over.
What? They knew each other?
Mr. McKinney denies it to Ms. Vargas, but “20/20” then produces several interviews with people who had seen the men together. And then a bomb is dropped.
Mr. O’Connor [a character who knew Shepard and McKinney], volunteers that Mr. McKinney didn’t hate gays because “I know of an instance where he had a three-way – two guys and one girl at a party, an all-nighter.” After confirming that Mr. McKinney had had sex with the man of the trio, Ms. Vargas asks Mr. O’Connor how he knows about such an intimate experience.
“Because he did it with me,” the limo driver says.
Now what does this prove? That Mr. McKinney was bisexual, as his girlfriend goes on to confirm? (Mr. McKinney denies that he has ever had sex with a man.) Does that mean he wasn’t homophobic? And as for the news about Mr. Shepard – so what if he did meth or had H.I.V.?
Mr. Shepard’s parents, Dennis and Judy, are interviewed here about their son’s character; they have since taken the position that the documentary is filled with errors.
None of this, as Ms. Vargas points out, changes the horror of the murder, or the inspiration and awareness that people gained from the widespread parable version of the event. But getting the truth – in ABC’s revisionist investigation, which seeks to overturn the powerful and canonical version of the facts and meaning of this crime – is worthwhile, as it thickens the description and adds to the mystery of what happened that night in Laramie.
The doubts about McKinney’s motivation and the final, gratuitous, paragraph notwithstanding, it is evident that Matthew Shepard’s murder — like the school shootings at Columbine and elsewhere — was used cynically by advocates of an agenda. That agenda was gay rights in the Shepard case, whereas it was gun control in the school-shooting cases.
The tone of the Times story suggests that McKinney’s crime would have been less heinous if Shepard hadn’t been killed because of his homosexuality. Why? Why should it more wrong to kill a homosexual because he’s a homosexual than to kill a homosexual because he has some money? The law should judge the crime, and not presume to judge the perpetrator’s state of mind. (And, yes, I take the same view of the insanity defense.)
(Thanks to Instapundit.com and Althouse for pointing me to the NYT piece.)
I Can’t Help Myself, So Sue You
First it was cigarette smoking, then it was smoking guns, now it’s a smoking credit card. The user blames the provider for being unable to control herself:
It’s not my fault. I’m mentally ill. That’s the argument a woman is using to sue American Express for two (M) million dollars after she ran up nearly one (M) million dollar in charges and couldn’t pay the bill.
Prosecutors say the woman – 40-year-old Antoinette Millard – posed as a Saudi princess to steal hundreds of thousands of dollars worth of merchandise. She is now suing America Express saying she was mentally incompetent when she opened her account and the company should have known it….
But she would have sued American Express for invasion of privacy had the company tried to discern her mental state.
Property Rights with a Vengeance
From The New York Times:
Property Rights Law May Alter Oregon Landscape
By FELICITY BARRINGER
Published: November 26, 2004
PORTLAND, Ore., Nov. 20 – Over the past three decades, Oregon has earned a reputation for having the most restrictive land-use rules in the nation. Housing was grouped in and near the cities, while vast parcels of farmland and forests were untouched by so much as a suburban cul-de-sac.
Environmentalists and advocates for “smart growth” cheered the ever-growing list of rules as visionary, while some landowners, timber companies and political allies cried foul.
But in a matter of days, the landowners will get a chance to turn the tables. Under a ballot measure approved on Nov. 2, property owners who can prove that environmental or zoning rules have hurt their investments can force the government to compensate them for the losses – or get an exemption from the rules.
Supporters of the measure, which passed 60 percent to 40 percent, call it a landmark in a 30-year battle over property rights….
Whatever the benefits of Oregon’s land-use rules, Mr. Day added, “the people paying the cost are property owners.”…
Both sides expect the measure to survive judicial scrutiny, and the state and local governments are to start fielding claims on Dec. 2. If claims are found to be valid and the government will not or cannot pay, it must instead waive any restrictions that went into force after the owners – or their parents or grandparents – acquired the land….
Liberty and property rights: inextricable values.
Is Nullification the Answer to Judicial Supremacy?
I have written often — and reluctantly — that the words and logic of the Constitution give the judicial branch the last word in the making of law. (See here, here, here, and here.) But, thanks to a post by William Watkins at Southern Appeal, I found a blurb for The Politically Incorrect Guide to American History, by Thomas E. Woods Jr., which includes this passage:
[The book’s] treatment of the early republic recalls parts of American history that have vanished into the memory hole, including the crucially important Virginia and Kentucky Resolutions of 1798 and Thomas Jefferson’s belief that only state nullification of unconstitutional federal legislation, rather than “checks and balances” among the branches of the federal government itself, had a chance of keeping the federal government in check.
Here, from Houghton Mifflin’s “The Reader’s Companion to American History,” is a bit more about the Resolutions:
The Virginia and Kentucky Resolutions of 1798 and 1799 raised the question of states rights’ and nullification. They were drafted in response to the passage of the Alien and Sedition Acts of 1798 but were concerned with a larger and more deep-rooted problem. How was power to be divided between the federal government and the states, and who was to settle disputes between the two?
The first Kentucky Resolution, passed by the state legislature on November 16, 1798, stated that when the federal government exercised power not specifically delegated to it by the Constitution, each state could judge the validity of that action for itself. The Virginia Resolution of December 24, 1798, claimed that the states “have the right and are in duty bound to interpose for arresting the progress of the evil.” Several northern states objected that the judiciary, not the states, should be the arbiter of constitutionality. The Kentucky legislature passed a second Resolution on November 22, 1799, arguing that a single state had the power to nullify a federal action it deemed unconstitutional.
Unknown to contemporaries, the Virginia and Kentucky Resolutions were drafted, respectively, by James Madison and Thomas Jefferson. The doctrines they enunciated were later cited by southern slaveholders in support of their right to secede from the Union. Yet it would be a mistake to conclude that either Jefferson or Madison truly wanted to dismantle the Union. The Resolutions are best understood in the context of the fierce political battles between Federalists and Jeffersonians in the 1790s and the prevailing theory of divided sovereignty. When John C. Calhoun evoked the Resolutions in the 1820s to support his own doctrine of nullification, he was solidly opposed by James Madison.
Nevertheless, considering the authorship of the Resolutions, there may be something to the concept of nullification as a response to blatantly unconstitutional lawmaking, whether it arises from unchecked congressional overstepping of its enumerated powers or judicial fiat. Consider these passages from Madison’s Virginia Resolution:
RESOLVED, That the General Assembly of Virginia, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it’s existence and the public happiness.
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them….
That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people….
And these passages from Jefferson’s second Kentucky Resolution:
THE representatives of the good people of this commonwealth in general assembly convened, having maturely considered the answers of sundry states in the Union, to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the alien and sedition laws, would be faithless indeed to themselves, and to those they represent, were they silently to acquiesce in principles and doctrines attempted to be maintained in all those answers, that of Virginia only excepted….
RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy:…That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact….
“That the several states who formed [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.” I love it.
More to come.
Delicious Thoughts about Federalism
A recent post by publius at Legal Fiction (a regressive blog) includes these tidbits (with my comments in brackets):
…From the New Deal on, the courts allowed the legislature to have the final say-so on whether a given law was related to interstate commerce. Maybe the legislature was right, maybe it was wrong – but it was the final arbiter. In the 1990s, the Rehnquist Court (for the first time in over half a century) [unthinkable!] found that a congressionally enacted law did not relate to interstate commerce and was therefore unconstitutional. [Imagine that!] The Court ruled that the law was outside the Article I enumerated powers in a case called Lopez and later in a case called Morrison….
But here’s what was really going on. Lopez and Morrison were less about enumerated powers and more about increasing the power of the judiciary…. [Actually it was about exercising the judiciary’s constitutional power. See below.]
So here’s what’s coming – and this will be the “first front” against the New Deal’s legislatively-enacted regulatory state. [That’s an almost-accurate description, but don’t forget the judiciary’s acquiescence.] If Republicans keep appointing judges, the number of laws found to be outside of the commerce power and Article I will grow. [One hopes.] In the beginning, they will be politically appealing decisions such as striking down federal laws banning medicinal marijuana. [You wish!] But with the principle firmly established, the courts will move on to bigger game. Though I doubt any of them will have the guts [a Republicans-are-racist slur] to declare the Civil Rights Act unconstitutional (it was enacted under the commerce power), they could very well strike down the entire environmental regulatory regime. Jeffrey Rosen (via Kevin Drum) recently wrote an excellent article that outlined just how much the administrative state could be threatened.
In short, the greatest danger from a Bush Court is not the overruling of Roe v. Wade but the overruling of the post-New Deal regulatory state.
That’s 100% correct. Rosen also makes the astute observation that, just like in the political sphere, conservatives scream about social issues like abortion to distract Americans from the economic consequences of approving Republican judges. But Rosen misses an essential point. Things like the EPA and the Endangered Species Act and anti-discrimination laws and workplace protections were all legislatively approved by democratic majorities. [So what, if they aren’t constitutional.] Conservatives cannot get a political majority to overturn the Clean Air Act, so they’re systematically stocking the judiciary with judges who will. It’s exactly what Bork was talking about, except that the judges are thwarting the political process in the economic and regulatory arena as opposed to the social arena. You can see how it works – Lopez and Morrison shift the power to the judiciary to be the final arbiters. [No, the Constitution does that.] Once that principle is established, GOP judges will start using that power to strike down the regulatory state. [Right on!]
So that’s the first front of the battle-to-come. The second front is a revival of Lochner. This is less likely, but as I explained earlier this week, Lochner revivals are stirring. For non-lawyers, just remember what I said yesterday. The Constitution is an obstacle course of sorts. If a law gets through the Article I obstacles, it must then not violate any other part of the Constitution. What a new Lochner would do would be to establish a new obstacle in the form of a “right to economic freedom” that could not be unreasonably infringed upon.
Here’s how this would work. Currently, if you argue that a given law violates your economic freedom (or economic due process rights or equal protection rights), it is reviewed under a “rational basis” test. That’s legalese for “anything goes.” The big point here is that, since the New Deal, courts have decided that the legislature (and not judges) should have the final say-so on the wisdom of an economic law or regulation. [As if the New Deal supplanted the Constitution.]
A new Lochner (or even a new watered-down version of Lochner) would increase the “scrutiny” applied to economic regulations. [Actually, Lochner is bad law; the same result can and should be achieved through the contracts clause, as explained here.] More regulations would be struck down on the grounds that they infringe upon people’s economic freedoms. [True.] But the big point, once again, is that such a move would shift power from the legislature to the judiciary. Judges, and not legislatures, would be the final arbiter of what economic laws are acceptable…. [True, and proper, according to the Constitution.]
If this happened, judges would be thwarting the [unconstitutional] will of the democratic majorities in order to enact their own minority political preferences [actually, their preference for constitutional laws].
If this is all too confusing, here’s the big point. Much of the conservative judiciary has adopted a judicial philosophy that is strikingly anti-democratic [read, anti-socialist and pro-constitutional] in the economic sphere. This philosophy – if enacted – would shift the power to judge economic regulations from the legislature to the judiciary….[What a novel concept: The power to judge would reside in the judiciary. And it would be the power to judge the legislation that authorizes regulations, as well as the conformity of regulations to legislation.]
Now, publius is clearly antagonistic to the idea of judicial supremacy — even though, within the confines of the three branches of the federal government, the judiciary is necessarily supreme. (See here, here, here, and here.) Moreover, publius is clearly antagonistic to the idea that the power of Congress should be confined to the powers enumerated in the Constitution — even though that is plainly what the Framers intended. (See here, here, here, here, and here, for example.)
Given publius‘s leanings I am especially heartened by his or her forebodings as to the demise of the regulatory state. If a conservative or libertarian were predicting that demise, I would say that he or she was smoking a controlled substance (though it wouldn’t bother me). But publius‘s prediction fills me with hope because it comes from the keyboard of someone who clearly begrudges it.
The Next Chief Justice?
I’ve long favored Thomas, but the Dems have signaled a preference for Scalia. In other words, if Bush were to nominate Thomas, stand by for a bruising confirmation hearing and a filibuster.
The Institute for Justice (a libertarian public-interest law firm) has a somewhat dated, but probably still accurate, assessment of the Justices’ records on individual liberties. Here’s the bottom line:
Those ratings reflect IJ’s assessment of the Justices’ stance on IJ amicus cases and other major cases, in these categories: free speech and association, limiting federal power, property rights, race neutrality, and school choice. The main difference between Thomas and Scalia seems to lie in the realm of property rights, where both Scalia and Thomas are strong on takings but Scalia is soft on forfeiture. Kennedy places ahead of Scalia for the same reason.
Scalia would be a good second choice to Thomas. Kennedy is too much the compromiser on other issues.
Politics and Prosperity 
