Category: Constitution – Courts – Law – Justice

A Victory for Property Rights: The Do-No-Call Registry Lives

The U.S. Supreme Court has “let stand a lower-court ruling that telemarketers’ rights to free speech are not violated by the government’s nationwide do-not-call list,” according to a Reuters report at MSNBC. The report continues:

Without comment, the justices rejected an appeal by commercial telemarketers against the lower-court ruling, which upheld as constitutional the popular program in which consumers can put their names on a list if they do not want to be called by telemarketers.

“We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government’s important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech,” the appeals court said.

It’s all too nuanced for me. Here was my take on the issue, back on June 29:

It’s my phone and my house, dammit. There’s no free speech issue. Does freedom of speech give anyone the right to burst into your house at dinner time and shout “Joe Schmoe for dogcatcher!”? I don’t think so.

Anyway, let’s celebrate a victory for property rights, even if the courts can’t bring themselves to call it that.

We’ll Be Watching You

The U.S. Supreme Court is the “you” in this case. The 2004-5 term of the Court opens Monday. Cases to watch, according to an AP story at Yahoo! News:

The death penalty, free speech and prison sentences are back on the agenda, along with new topics such as medical marijuana and out-of-state wine purchases that are likely to produce significant disagreement….

Here’s the death penalty issue:

A case sure to elicit strong opinions will be argued this month when justices are asked to rule on the constitutionality of executing killers who committed their crimes when they were juveniles….

The juvenile case will decide the fate of about 70 people on death row who killed when they were teenagers, including a Missouri man who was 17 when he helped push a woman off a railroad bridge in 1993. The United States is among only a few countries that allow execution for crimes committed before age 18.

Let the punishment fit the crime, I say. Don’t gas the guy, throw him off a railrod bridge.

This year’s top free speech case asks if the government can force cattle producers to pay for programs such as the “Beef: It’s What’s for Dinner” ad campaign. The court’s ruling is significant because the government forces growers of many agricultural products, from eggs to alligators, to share expenses for marketing. The eventual ruling would affect nonagriculture government programs, too….

And farmers and ranchers, of course, are passing on the cost of those ad campaigns to consumers. So, by forcing farmers and ranchers to support the ad campaigns, the government is effectively forcing taxpayers to subsidize advertising. Why doesn’t the government just ship 10 percent to the ad agencies and drop the advertising? We’d all be better off.

As for medical marijuana, maybe it should be legalized, with a proviso that marijuana growers must join forces with the Miller Brewing Company for a “high time” advertising campaign.

Allowing inter-State shipment of wine to individual consumers should be an easy one. If a State allows the importation of alcoholic beverages pursuant to the 21st Amendment — and I guess all States do — then barring the shipment of wine to individual consumers within the State amounts to State regulation of interstate commerce, which is reserved to the federal government. Next case.

Speaking of Discrimination…

…a story at The Washington Times says:

Discrimination against white male found

By George Archibald

THE WASHINGTON TIMES

An English professor at the University of North Carolina illegally subjected a student to “intentional discrimination and harassment” because he was “a white, heterosexual Christian male” who expressed disapproval of homosexuality, the U.S. Education Department’s Office of Civil Rights has ruled.

Professor Elyse Crystall violated student Timothy R. Mertes’ civil rights, the agency said, by improperly accusing him of “hate speech” in an e-mail sent to students after a class discussion in which Mr. Mertes said he was a Christian and felt “disgusted, not threatened” by homosexual behavior.

“The e-mail message not only subjected the student to intentional discrimination and harassment, but also discouraged the robust exchange of ideas that is intrinsic to higher education and is at the very heart of the Constitution’s protection of free speech,” Alice B. Wender, the Education Department’s southern regional director of civil rights concluded in a letter to UNC Chancellor James Moeser on Wednesday.

It’s about time.

Is There Such a Thing as Legal Discrimination?

According to an Encarta article about Detroit, the Motor City’s population peaked at 1,850,000 in 1950. Its black population at the time was 16 percent of the total, that is, about 300,000. Detroit’s population in 2000 was about 950,000, of which 81.6 percent — about 776,000 — were black. Thus the non-black population of Detroit dropped by almost 90 percent in 50 years. The “white flight” from Detroit made property there much cheaper than in the nearby suburbs to which whites were fleeing. And so, as low-income blacks filled much of the space left by whites, Detroit’s black population increased by more than 250 percent during the same 50 years.

The white-flight phenomenon leads me to ask two questions: Was the desertion of Detroit (and other large Northern cities) by non-blacks a form of discrimination? If so, was that discrimination legal? I ask because Tim Sandefur in two recent posts at Freespace (here and here), has left me wondering whether there is any legal scope for widespread acts of racial discrimination.

It’s clear to me that non-blacks were discriminatory in leaving Detroit. I grew up in Michigan. I can vouch for its combination of Northern charm and Southern racial attitudes. Detroit’s whites might have rationalized their flight as a response to the greater prevalence of crime and drugs in the black community, but white flight stemmed from a visceral dislike on the part of most whites for living near blacks. (Detroit is, of course, only emblematic of racial attitudes and their consequences throughout the North.) The greater prevalence of crime and drug use among blacks gave whites an excuse for fleeing Detroit, but the underlying cause of white flight was old-fashioned bigotry.

Now the question is whether white flight was legal. Actually, I have no doubt that it was perfectly legal for the vast majority of Detroit’s white citizens to abandon that city and practically ghetto-ize it. Each departing household simply made a voluntary decision to leave and each arriving household simply made a voluntary decision to move in. But Sandefur’s posts lead me to wonder at what point it becomes illegal for the majority of citizens to act similarly out of racial prejudice. Here’s Sandefur, writing about the refusal of most Southern whites to trade with Southern blacks in the days of legal segregation:

If everyone in the state makes an agreement (even sub silentio) not to engage in trade with blacks, even if they don’t stamp that agreement with the state’s imprimatur, it is still a social compact, which means that it can’t pretend not to be state action….

[A] person has the right to discriminate in almost all cases, but when that discrimination reaches such a massive collective agreement, it becomes state action, I think, and subject to the same objections as state discrimination.

These statements are consistent with an earlier post, in which Sandefur says:

As Frederick Douglass pointed out in his speech on the Civil Rights Cases, what sense does it make that we say “the state may not do X, if we say all of the citizens may do X”?

Thus, if I’ve followed Sandefur’s reasoning correctly, it seems to be this:

1. A collective agreement amounts to state action.

2. The state cannot act to deny an explicit constitutional right or any other fundamental right, say, the right to engage in commerce.

3. Therefore, the widespread refusal of whites to refuse to engage in commerce with blacks is an unlawful state action.

The linchpin of Sandefur’s argument is his conflation of collective agreements and state action, a conflation that he traces to Frederick Douglass. Sandefur’s argument collapses if not all collective agreements amount to state action. Well, his argument collapses because:

1. It’s true that the state arises out a collective agreement of its citizens (or their chosen representatives).

2. But the collective agreement that creates the state doesn’t give the state unlimited power of action. In fact it specifically limits the state’s power of action. The citizens of the state may — and do — withhold certain powers from the state, for the private exercise of citizens.

3. Therefore, regardless of how many citizens agree on a particular subject, that agreement is not tantamount to state action if the subject lies outside the power granted the state. Enforcement of an extra-constitutional collective agreement rests on the voluntary submission of citizens to that agreement. The same citizens who entered the collective agreement may dissolve it piecemeal by abandoning it, one or a few at a time, whereas they cannot similarly revoke a power specifically granted the state.

I conclude that the state has no business telling its citizens how they may or may not carry their racial attitudes into the conduct of their affairs, as long as that conduct is passive — that is, as long as it takes such forms as not buying from, hiring, or otherwise associating with members of certain groups. I say that not out of bigotry — I long ago outgrew the attitudes of my native State — but because we have gone far beyond the abolition of slavery and the granting of equal civil rights. We have practically repudiated freedom of association, we have severely undermined property rights, and — more lately with speech codes and hate-crime laws — we have entered an early stage of thought policing.

In sum, liberty is being vanquished in the name of liberty. It wouldn’t be happening if collective agreements were, indeed, tantamount to state action.

Favorite Posts: Affirmative Action and Race

Florida Supremes Make a Tough Call

I’m not surprised by the substance of the Florida Supreme Court’s decision in the case of Terry Schiavo, which enables the removal of the brain-damaged woman’s feeding tube. I am intrigued by the legal logic underlying the court’s decision. From AP via Yahoo! News:

Fla. Court Nixes Law Keeping Woman Alive

By JACKIE HALLIFAX, Associated Press Writer

TALLAHASSEE, Fla. – The Florida Supreme Court on Thursday struck down a law that was rushed through the Legislature last fall to keep a severely brain-damaged woman hooked up to a feeding tube against her husband’s wishes.

The unanimous court said the law that kept Terri Schiavo alive violated the separation of powers between the judicial branch and the legislative and executive branches.

Lower courts had ruled that Michael Schiavo could have the tube removed, but the Legislature passed the law to overrule the courts. Gov. Jeb Bush then used the law to order the tube reinserted. The court’s decision came just weeks after oral arguments….

“It is without question an invasion of the authority of the judicial branch for the Legislature to pass a law that allows the executive branch to interfere with the final judicial determination in a case,” Chief Justice Barbara Pariente wrote for the court. “That is precisely what occurred here.”

The court said the law improperly delegated legislative powers to the governor, who had complete authority to issue or lift a stay….

The 40-year-old woman left no written instructions before suffering brain damage when her heart stopped beating 14 years ago. But in Florida a person’s wishes must be honored even if they are expressed orally.

Schiavo’s parents disagree with their son-in-law about her wishes, insisting their daughter wanted to live and could be helped with therapy. Courts have generally sided with Michael Schiavo, but parents Bob and Mary Schindler have won stays that have kept their daughter alive.

Why didn’t the court simply accept Michael Schiavo’s word that his wife didn’t want to live in a vegetative state? Is the court using the Schiavo case as a way of getting back at Florida’s Republican legislature and governor for the outcome of Bush v. Gore? In that case, as you know, the U.S. Supreme Court overruled the predominantly Democrat Florida court, which had overruled the intent of the Florida legislature, as properly interpreted by Jeb Bush’s secretary of state, so that Gore’s minions could continue to manufacture the votes Gore needed to defeat Bush.

That’s the only way I can read it.

Since when has it been improper for a legislature to make a law that effectively overrules a judicial determination? It would be improper if the law itself is unconstitutional. But how is it unconstitutional for the Florida legislature to authorize the governor to issue a stay in the matter? Legislatures don’t issue stays, but they can authorize the executive to issue them.

Mmmm…this one may be headed to the U.S. Supreme Court.

Saving the Electoral College

Gail Heriot of The Right Coast has been posting on the subject “Does the Electoral College Makes Sense?” She is trying to make the case for abolishing the Electoral College. Her latest post is here. I think she has yet to address a very good argument for keeping the Electoral College, which comes from Glenn C. Altschuler, writing at The New York Observer in a review of Why the Electoral College Is Bad for America, by George C. Edwards III:

[T]o avoid the possibility of electing a President who has only a plurality in a crowded field, advocates of direct election provide for a runoff if no candidate gets 40 percent of the vote. The runoff, Mr. Edwards acknowledges, “has some potential to fragment the party system.” He argues, strenuously, that runoffs would be rare and would not destabilize the political system. The provision, however, is fraught with danger. Third-, fourth- and fifth-party candidates — let’s call them Ralph, Ross and Lyndon LaRouche — could enter the first round. Without a winner-take-all in each state, voters might be less likely to think they were wasting their votes on them. These reforms might weaken the already fragile two-party system — which, for all its flaws, has served this country well — and put fringe parties in the driver’s seat, à la Israel. It doesn’t seem worth the risk. Maybe, after all, the Founders were right.

Yep, just maybe.

DeLay, a Headliner in Austin

“Grand jury indicts DeLay lieutenants,” according to the Austin Statesman-American. The Statesman plays up the DeLay angle because (1) it’s a Democrat mouthpiece and (2) it harbors special ill-will toward DeLay, who is the Darth Vader of Texas politics, according to the left.

Go below the headline and you read this:

Following the Republican sweep of the 2002 elections [for State-wide offices], [Travis County District Attorney Ronnie Earle, a Democrat], began investigating allegations that Republicans and their business allies used unprecedented amounts of corporate cash to affect the elections.

State law generally prohibits using corporate or labor union money for political purposes except to pay for the administrative expenses of a political action committee.

There are two things going on here: a political vendetta and the suppression of political speech. The latter is just as bad in Texas as it is in D.C., thanks to decades of Democrat control of the Texas legislature.

Time to Regulate the Blogosphere?

That thought must have crossed the minds of some highly placed Democrat sympathizers in the “mainstream” media when the blogosphere started shredding the threadbare remnants of Dan Rather’s reputation for honest reporting. But the blogosphere is protected by the First Amendment, isn’t it?

There’s stark evidence that the blogosphere can be regulated, if the feds want to do it. Look at the airwaves, which the feds seized long ago, and which the feds censor by intimidation. Look at the ever-tightening federal control of political speech, which has brought us to McCain-Feingold. It’s all in the name of protecting us, of course.

Here’s how the blogosphere might come under the “protection” of a regulatory body: Major blogging service providers (Blogspot, TypePad, etc.) and major internet service providers (SBC, AT&T, etc.) become the targets of a class-action lawsuit brought by the “victims” of a blogospheric assault — a group of persons more savory than Bill Burkett (suspected author of the forged National Guard documents used by Rather). The targets cut a deal with the FCC — protection in return for regulation. The FCC justifies the regulation of content on the same grounds that it justifies the regulation of the content of radio and TV transmissions — the transmissions are a “commodity” in interstate commerce, not “speech”. The FCC then begins monitoring blogospheric emissions (random monitoring would be sufficiently chilling) and entertaining complaints from offended readers of blogs (lefties who don’t like what righties write, and vice versa). You can guess the rest.

Of course, it might not happen with Congress and the White House in Republican hands. But look at who was in charge when McCain-Feingold became law.

Favorite Posts: Academic Freedom and Freedom of Speech

Scary Stuff — Revisited

POSTED SEPT. 15:

From Reuters via Yahoo! News: “Florida Top Court Intervenes in Nader Ballot Row.” Let’s see how the Florida Supremes rationalize keeping Nader off the ballot.

BREAKING NEWS, SEPT. 17:

Florida Supreme Court Puts Nader on Ballot
By THE ASSOCIATED PRESS

Published: September 17, 2004

Filed at 8:47 p.m. ET

TALLAHASSEE, Fla. (AP) — Ralph Nader is back on Florida’s ballot — probably for good this time.

The Florida Supreme Court ruled 6-1 Friday that he can run as the Reform Party presidential candidate in the November election.

Surprise, surprise. I guess the Florida Supremes didn’t want the embarrassment of being reversed again by the U.S. Supremes.

Here’s Another Way to Skin the Cat

From AP via The Washington Times:

Doctors object on moral grounds

NEW YORK (AP) — In Congress and states nationwide, pro-life activists are broadening efforts to support hospitals, doctors and pharmacists who — citing moral grounds — want to opt out of services linked to abortion and emergency contraception.

A little-noticed provision cleared the House of Representatives last week that would prohibit local, state or federal authorities from requiring any institution or health care professional to provide abortions, pay for them, or make abortion-related referrals, even in cases of rape or medical emergency….

At the federal level, abortion rights groups are alarmed by the provision that cleared the House last week, broadening protections for hospitals and insurers that seek to avoid any involvement with abortions. The provision would prevent government officials from using any coercive means — such as a funding cutoff or permit denial — to ensure abortion-related services are available.

Two years ago, the House passed a bill with the same goals, but it died in the Senate without a vote. Pro-life activists are pleased because the revived proposal was sent to the Senate as part of a broader appropriations bill and, at minimum, will go to a House-Senate conference committee….

Stay tuned. It will be interesting to see — if the bill becomes law — how the pro-murder forces argue against it in court, as surely they will. My guess is that they’ll try to convert the “negative right” recognized in Roe v. Wade (the government can’t prevent abortion) into a “positive right” (medical institutions must provide abortions, even if they don’t want to).

UPDATE:

Frank Conte at From the Ground Up says:

I don’t subscribe to the harsh “pro-murder” characterization. However, this debate will be a problem for liberals who have posited a right to abortion within a libertarian context, for example “keeping government out of our bedrooms.” Fair enough even though I am suspect of post-modern liberal reasoning. But now liberalism must answer to its egalitarian side and against whatever remains of its libertarian creed – forcing, let’s say a Catholic hospital, into performing abortions.

A good point about the dilemma that liberalism would face. Given the penchant of liberals to favor their preferred outcome over others’ rights, I think most of them would come down on the side of compelling medical institutions to provide abortions. That would be consistent with their stands on affirmative action and smoking in privately owned places (e.g., bars and restaurants), to name a few.

As for the “pro-murder” characterization, that comes from earlier posts in which I’ve explained that I oppose abortion because (1) it amounts to the murder of a defenseless, innocent being and (2) it’s a step down the slippery slope toward such things as involuntary euthanasia. It is harsh, but then I’m prone to calling a digging tool a shovel.

Judicial Interpretation

I’ve posted about judicial supremacy several times. The latest post is here and it links to my earlier posts. The cumulative thrust of the posts is twofold: First, the logic of the Constitution gives the Supreme Court the last say in the making of law. Second, I come to that conclusion reluctantly because of the tendency of the judiciary to make law rather than interpret it. The ways in which the judiciary justifies its legistlative tendencies are enumerated nicely here, in a piece by law professor Gene Straughan entitled “The Politics of Interpretation.” In it, Straughan enumerates the extra-constitutional bases of much judicial law-making (e.g., upholding “compelling government interests”) and analyzes the relationships between the Supreme Court’s decisions and its ideological makeup.

How to Fight Crime

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.

Insider Trading and Caveat Emptor

Stephen Bainbridge has a new piece at Tech Central Station with the title “Why Regulate Insider Trading?” Bainbridge, who blogs at ProfessorBainbridge.com and professes corporate and securities law at the UCLA School of Law, knows a lot more than most people about the subject of insider trading. Here’s my simple view of it:

When a corporate officer or employee acts on “inside” information to profit from the sale or purchase of his company’s stock, that person is engaging in a form of fraud. Why? Because, the information on which the officer or employee acts isn’t his information. It belongs to the corporation and therefore to the corporation’s shareholders.

An officer or employee who sells the corporation’s stock knowing of bad news that’s about to break is, in effect, profiting at the expense of other shareholders. The inside trader, by selling before other shareholders can sell, loses less than other shareholders; that is, he transfers his losses to others by acting on information that is rightly theirs.

The inside trader who sells short may actually profit from the losses of other shareholders.

An insider who buys his company’s stock knowing of good news that is likely to drive up the price of that stock is profiting from the ignorance of other shareholders. If they had the same information, many of them would compete with the insider to bid up the price of the stock, thus reducing or even eliminating his ability to profit from inside knowledge.

What about the effects of insider trading on prospective shareholders? If a corporation has especially good or bad news, it ought to divulge that news to prospective shareholders. A prospective shareholder — unlike a prospective used-car buyer — has no way of knowing the current working condition of a corporation before he buys its shares. Nor can a prospective shareholder buy shares that come with a warranty against hidden defects. It is therefore a fraudulent act, to my way of thinking, if a corporation fails to divulge critical information about its affairs to prospective shareholders.

The right remedy for insider trading — and for corporate failure to disclose critical information — is to sue and prosecute for fraud. Knock off all the legalistic regulations — just sue and prosecute. If the bastards aren’t deterred, make them pay through the nose and with a stretch in the slammer.

Freedom of Contract and the Rise of Judicial Tyranny

Anyone who thinks that this earlier post reflects a softening on my part with respect to judicial tyranny should read this, this, this, and this, for starters. I take aim today at the grievous mischief done by the U.S. Supreme Court in the name of preserving freedom of contract. That freedom is specified in Article I, Section 10, of the U.S. Constitution:

No State shall…pass any…Law impairing the Obligation of Contracts…

Some have argued that the Constitution enables the federal government to interfere in contractual relationships because such interference isn’t forbidden. Those sophists conveniently forget that the Constitution grants to the federal government only the powers enumerated in the Constitution.

Others have argued that the federal government’s interference in contractual relationships is warranted by the Commerce Clause in Article I, Section 8, of the Constitution:

The Congress shall have Power…

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

But it is clear that the Constitution grants Congress the power to regulate interstate commerce for the purpose of fostering free trade among the States, not for the purpose of regulating the operation of businesses engaged in that trade. For example, Article I, Section 9, specifies that

[n]o Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

And Article I, Section 10, goes on to say that

[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

With that issue out of the way, let us consider the fate of contractual freedom and the rise of judicial tyranny. The U.S. Supreme Court upheld that right 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 from impairing contracts except in emergencies or to exercise their “policing power”; the Constitution flatly forbids States from impairing contracts.

How hard can it be to enforce the plain meaning of the Constitution? It can be impossible when that isn’t what the Court wants to do. Take the doctrine of “substantive due process” — a whole-cloth invention of the Court in the case of Dred Scott (1857), as described by Brian C. Anderson at City Journal:

What makes Dred Scott the prototype of today’s judicial activism is its radical rewriting of the Fifth Amendment’s due process clause, which states that no person shall be “deprived of life, liberty, or property, without due process of law”—meaning, according to ancient legal tradition, simply that the authorities had to follow the legally proper procedures in applying the law. In Dred Scott, the Court declared that any federal law that deprived a citizen of his slaves would in itself violate due process. This notion of “substantive” due process—that government can’t deprive citizens of certain property or certain liberties without violating due process by the very act of doing so—“has enabled judges to do more freewheeling lawmaking than any other,” says [Justice Antonin] Scalia.

What does substantive due process have to do with freedom of contract? Anderson continues:

[F]rom the late 1890s until the mid-1930s, [the Court] again marshaled the substantive due process concept to make, rather than interpret, law. This time, the Court injected into the due process clause (not just of the Fifth Amendment but also of the post–Civil War Fourteenth Amendment, modeled on it, that applied to states) a natural right to “freedom of contract” dear to the nation’s rising business class. This “substance”—this liberty that could be taken away by no legitimate due process—was more morally defensible than slaveholding, but the interpretive sleight of hand to “discover” a protection that wasn’t in the Constitution was the same as in Dred Scott. The 1905 Lochner case symbolizes this period in constitutional history: it struck down, on the substantive due process grounds that it violated freedom of contract, a New York law that limited bakers’ workweeks to 60 hours for health reasons—only one of hundreds of federal and state social welfare laws, including early New Deal initiatives, that couldn’t get past the courts during these decades. “Like its even more unseemly ancestor Dred Scott,” observe legal thinkers Eugene Hickok and Gary McDowell, “Lochner helped set in motion the mechanics of government by judiciary.”

The Lochner Court could have decided that case by standing foursquare on the Contracts Clause, as did the Court in Bronson v. Kinzie. But the Court was too anxious to find rights where none existed, thus paving the way for

[t]he heroic new judge [who] drew inspiration from a doctrine called “the Living Constitution,” which held, as Justice William Brennan put it, that: “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” More than adapt, the Living Constitution could bring about epochal social changes whenever judges like Brennan believed that justice demanded them….

Another Look at Judicial Supremacy

I have written before (here and here) about the logic of judicial supremacy — a doctrine that I accept in spite of the long history of judicial tyranny in the United States. But why accept my logic when we can read Chief Justice John Marshall, writing for the U.S. Supreme Court in Marbury v. Madison (1803)?

The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed [by William Marbury to receive a commission as judge, granted by President John Adams, but withheld by President Thomas Jefferson’s Secretary of State James Madison,] is given by a law of the United States.

In the distribution of this power it is declared that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.”

It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the Supreme Court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance….

The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written constitution — would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law?

The constitution declares that “no bill of attainder or ex post facto law shall be passed.” If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?

“No person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as _____, according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.” Why does a Judge swear to discharge his duties agreeably the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

In summary: The Constitution is the supreme law of the land. Courts are empowered to hear cases arising under the Constitution and the laws of the United States. Courts are obliged to obey the Constitution. Therefore, when a court finds that a law is in conflict with the Constitution, the court must strike down such a law.

The grant of judicial supremacy is like “checks and balances” — it is never mentioned in the Constitution but it is implicit in the structure of the Constitution.

A Very Politically Incorrect Labor Day Post

Labor Day gives most workers a day off. That’s good because an extra day off now and then is a pause that refreshes. A longish trek to a park or a beach on a hot day with a car full of kids isn’t a refreshing way to spend Labor Day, but those workers who spend the day at home, perhaps reading a book and listening to music, will find their souls somewhat restored.

Now let us consider the significance of Labor Day as a holiday. According to Wikipedia:

The origins of Labor Day can be traced back to the Knights of Labor in the United States, and a parade organized by them at that time on September 5, 1882 in New York City. In 1884 another parade was held, and the Knights passed resolutions to make this an annual event. Other labour organizations (and there were many), but notably the affiliates of the International Workingmen’s Association who were seen as a hotbed of socialists and anarchists, favoured a May 1 holiday. With the event of Chicago’s Haymarket riots in early May of 1886, president Grover Cleveland believed that a May 1 holiday could become an opportunity to commemorate the riots. But fearing it may strengthen the socialist movement, he quickly moved in 1887 to support the position of the Knights of Labor and their date for Labor Day. The date was adopted in Canada in 1894 by the government of Prime Minister John Thompson, although the concept of a Labour Day actually originated with marches in both Toronto and Ottawa in 1872. On the other hand, socialist delegates in Paris in 1889 appointed May 1 as the official International Labour Day.

Labor Day has been celebrated on the first Monday in September in the United States and Canada since the 1880s. The September date has remained unchanged, even though the two governments were encouraged to adopt May 1 as Labor Day, the date celebrated by the majority of the world. Moving the holiday, in addition to violating U.S. tradition, could have been viewed as aligning U.S. labor movements with internationalist sympathies.

In summary (for those of you who didn’t grow up in the North), Labor Day is an invention of organized labor, and the historical roots of organized labor are socialistic.

Labor Day also serves to remind us of one of the “monuments” of FDR’s New Deal (quoting again from Wikipedia):

The National Labor Relations Act of 1935 (or Wagner Act) protects the rights of workers in the private sector of the United States to organize unions, to engage in collective bargaining over wages, hours, and terms and conditions of employment, and to take part in strikes and other forms of concerted activity in support of their demands….

In the first few years of the Wagner Act, however, many employers simply refused to recognize it as law. The United States Supreme Court had already struck down a number of other statutes passed during the New Deal on the grounds that Congress did not have the constitutional authority to enact them under its power to regulate interstate commerce. Most of the initial appellate court decisions reached the same conclusion, finding the Act unconstitutional and therefore unenforceable. It was not until the Supreme Court upheld the constitutionality of the statute in 1937 in National Labor Relations Board v. Jones & Laughlin Steel Corp. that the Wagner Act became law in practical terms as well.

Thus Labor Day, in its way, commemorates legislative and judicial infamy. The Wagner Act, at one stroke, deprived business owners of their property rights and thus discouraged investment and business formation; invalidated the freedom of employers to contract with employees on terms acceptable to employers as well as employees; caused artificially high wages and benefits that harmed American workers by making American industry less and less competitive with foreign industry; and set the stage for the use of the Commerce Clause as an excuse for the federal government’s interference in all aspects of business.

So, if you are a worker, enjoy your Labor Day holiday, but don’t thank organized labor or the New Deal for your material blessings.

Entertain Me!

Michael J. Copps, a Democrat member of the Federal Communications Commission, believes

our broadcast media owe us more coverage of an event that remains an important component of the presidential campaign. Yet tonight, if people around the country tune in to the commercial broadcast TV networks, most will not see any live convention coverage. That’s not right.

Let’s remember that American citizens own the public airwaves, not TV executives. We give broadcasters the right to use these airwaves for free in exchange for their agreement to broadcast in the public interest. They earn huge profits using this public resource. During this campaign season broadcasters will receive nearly $1.5 billion from political advertising.

Where to begin? Let’s start with fundamentals and go from there:

1. American citizens don’t own the public airwaves. The federal government, acting through the FCC, regulates the airwaves in the mistaken belief that chaos would ensue if the airwaves weren’t regulated. If the FCC didn’t regulate the electromagnetic media, the users of the media would regulate themselves, just as surfers regulate themselves.

2. How much money broadcasters make is therefore none of the FCC’s business.

3. What broadcasters broadcast is therefore none of the FCC’s business.

4. Broadcasters should broadcast in order to maximize their profits. A concept that happens (through the magic of the “invisible hand”) to serve the interests of consumers.

If Copps thinks that people who watch political conventions actually learn anything they can’t learn by watching or listening to news programs, reading newspapers and magazines, surfing the web, and — best of all — reading political blogs of all persuasions, then Copps is a fool. But we already knew that, didn’t we, when he said that a convention is an “event that remains an important component of the presidential campaign.” That’s true only in the sense that a convention affords a major party the opportunity to grab some free advertising for its candidate.

Copps is more than a fool, however; he’s a paternalistic fool. He’s itching to force broadcasters to cover conventions because watching them would be good for us, the unwashed masses who, obviously, don’t know where to turn for our political news.

Well, Copps’s term as commissioner expires June 30, 2005. So, if Bush wins re-election, Copps won’t be around the FCC much longer.

Judicial Legislation — Example 9,999,999

Think what you will about the issue of abortion, but how can anyone say that this isn’t a judicial usurpation of legislative prerogative?

Judge Stops Partial-Birth Abortion Ban

By LARRY NEUMEISTER, Associated Press Writer

NEW YORK – In a highly anticipated ruling, a federal judge found the Partial-Birth Abortion Ban Act unconstitutional Thursday because it does not include a health exception.

U.S. District Judge Richard C. Casey in Manhattan said the Supreme Court has made it clear that a law that prohibits the performance of a particular abortion procedure must include an exception to preserve a woman’s life and health….

The law, signed in November, represented the first substantial federal legislation limiting a woman’s right to choose an abortion. Abortion rights activists said it conflicted with three decades of Supreme Court precedent.

It banned a procedure that is known to doctors as intact dilation and extraction, but is called “partial-birth abortion” by abortion foes. During the procedure, the fetus is partially removed from the womb, and its skull is punctured or crushed.

The judge challenged the conclusion by Congress that there is no significant body of medical opinion that the procedure has safety advantages for women…[emphasis added].

I would recant my position on judicial supremacy (here and here), if the alternative weren’t legal chaos. On the other hand, rulings like Judge Casey’s suggest that chaos is at hand.

The Only Vote That Counts

As of the moment, if you believe polls, Kerry will collect more popular votes than Bush, even in a three-way race with Nader. But it’s close, and the election is more than two months away.

Well, suppose Kerry does “win” the popular vote, at the national level. So what? Why should anyone pay attention to that vote? The only vote that matters is the electoral vote.

Repeat after me…

More on the Debate about Judicial Supremacy

The debate about judicial supremacy continues. Well, William Watkins at Southern Appeal is keeping it alive. His latest post is here. He rebuts the notion that Marbury v. Madison (1803) settled the matter in favor of the U.S. Supreme Court. Watkins refers to an earlier post in which he discusses Larry Kramer’s book, The People Themselves: Popular Constitutionalism and Judicial Review:

Perhaps the hardest part for lawyers in understanding Kramer’s argument is our legal education. We are taught that the Framers intended the Supreme Court to be the final arbiter of the Constitution and that in Marbury John Marshall enshrined this principle forever. This is the “first principle” from which we begin. Kramer challenges this and distinguishes fundamental law from ordinary law. He argues that fundamental law (i.e., the Constitution) was never understood to be subject to the same judicial authority as ordinary law. To a modern lawyer this sounds like heresy, but Kramer assembles impressive evidence to support his position.

So, what is the solution? Kramer makes this suggestion:

To control the Supreme Court, we must first lay claim to the Constitution ourselves. That means publicly repudiating justices who say that they, not we, possess the ultimate authority to interpret the Constitution. It means publicly reprimanding politicians who insist that “as Americans” we should submissively yield to whatever the Supreme Court decides. It means refusing to be deflected by arguments that constitutional law is too complex or difficult for ordinary citizens. Constitutional law is indeed complex, because legitimating judicial authority has offered the legal system an excuse to emphasize technical requirements of precedent and formal argument that necessarily complicated matters. But this complexity was created by the Court for the Court and is itself a product of judicializing constitutional law. In reclaiming the Constitution we reclaim the Constitution’s legacy as, in Franklin D. Roosevelt’s words, “a layman’s instrument of government” and not “a lawyer’s contract.” Above all, it means insisting that the Supreme Court is our servant and not our master: a servant whose seriousness and knowledge deserves much deference but who is ultimately supposed to yield to our judgments about what the Constitution means and not the reverse.

It reads like a passage from the script for Mr. Smith Goes to Washington. It also reads like a recipe for anarchy. There’s no doubt that the Supreme Court has badly twisted the Constitution. But think of where we might be if very many people were to take Kramer seriously. It makes me shudder.

As I have written before, the logic of judicial supremacy is irrefutable — like it or not:

1. Congress enacts laws for whatever reasons it will. Members of Congress may have stirring debates about the constitutionality of a particular law, but in the end Congress will do what it will do. It’s true that Congress should enact only constitutional laws, but that’s like saying children who live in a match factory shouldn’t play with matches.

2. If the executive doesn’t like a particular law for any reason (one of which may be his opinion that the law is unconstitutional) he may veto the law. If his veto is overridden, the law is the law.

3. In the absence of a specific judicial decision nullifying a specific law, the executive is bound to enforce that law. That is what the Constitution contemplates: The legislature legislates and the executive executes. There’s nothing mysterious or arcane about that.

4. If a party with standing challenges a law, it’s up to the courts to decide whether or not it’s a constitutional law. As it says in Article III, Section 2, of the Constitution:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States….

Which means, as far as I’m concerned, that the executive must defer to judicial decisions about the application of a specific law.