An Agenda for the Supreme Court

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

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

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

Defend Life

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

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

Defend American Sovereignty

In another post I stipulated the following:

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

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

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

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

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

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

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

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

Amen.

Restore Economic Liberty

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

I begin with the loss of freedom of contract. The Court upheld that freedom in Bronson v. Kinzie (1843). According to The Oxford Guide to United States Supreme Court Decisions (Oxford University Press, 1999, p. 33),

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

The Oxford Guide continues :

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

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

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

That is, the Court simply decided to uphold a Minnesota statute that altered the terms of a contract because it wanted to do so, not because it had constitutional authority for doing so. The Constitution doesn't forbid States to impair contracts except in emergencies or to exercise their "policing power"; the Constitution flatly forbids States to impair contracts. A libertarian Court would begin to restore freedom of contract by reversing Home Building and Loan Association v. Blaisdell.

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

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

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

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

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

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

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

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

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

To be continued.