Monday, October 31, 2005

Equal Time


Last week I reported about a series of posts by Maggie Gallagher, guest-blogging at The Volokh Conspiracy, in which Gallagher laid out a case against legalizing same-sex marriage. Volokh is now hosting Dale Carpenter, who will make a "traditionalist" case for legalizing same-sex marriage. I'll add links to Carpenter's posts as they appear. When he's done I'll try to summarize his conclusion, and compare it with Gallagher's.

Posts to date:

Dale Carpenter on Same-Sex Marriage (intro by Eugene Volokh)
The Traditionalist Case for Gay Marriage -- The Week Ahead
The Traditionalist Case -- The Numbers
The Traditionalist Case -- Individualistic Benefits to Gay Couples and Individuals
Response to Commentators -- Day 1 (ADDED 11/01 @ 10:23 AM)
The Traditionalist Case -- Individualistic Benefits to Children (ADDED 11/01 @ 10:58 AM)
People Unclear on the Concept (comment about comments by Eugene Volokh) (ADDED 11/01 @ 3:45 PM)
The Traditionalist Case – Communitarian Benefits (ADDED 11/01 @ 3:45 PM)
The Traditionalist Case – The Magnitude of the Benefits (ADDED 11/02 @ 12:18 PM)
Response to commentators – Day 2 (ADDED 11/02 @ 12:18 PM)
The Traditionalist Case -- The Definitional Argument Against Gay Marriage (ADDED 11/02 @ 12:18 PM)
The Traditionalist Case – The Contagious-Promiscuity Argument (ADDED 11/02 @ 5:55 PM)
The Traditionalist Case – The Polygamy Slippery-Slope Argument (ADDED 11/02 @ 8:25 PM)
Response to commentators -- Day 3 (ADDED 11/03 @ 4:15 PM)
The Traditionalist Case – The Procreation Argument (Standard Version) (ADDED 11/03 @ 4:15 PM)
More from Cathy Young on Same-Sex Marriage (an interjection by Eugene Volokh) (link to source ADDED 11/03 @ 4:15 PM)
The Traditionalist Case – The Procreation Argument (Gallagher Version) (ADDED 11/03 @ 8:52 PM)
Response to commentators – Day 4 (ADDED 11/04 @ 10:25 AM)
The Traditionalist Case – What Would Burke Do? (ADDED 11/04 @ 10:25 AM)
The Traditionalist Case – Getting From Here to There (ADDED 11/04 @ 10:35 PM)
The Traditionalist Case – Last Thoughts (ADDED 11/04 @ 10:35 PM)

Law, Liberty, and Abortion

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

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

The Wrongness of Roe v. Wade

Abortion was considered murder long before States began to legislate against it in the 19th century. The long-standing condemnation of abortion -- even before quickening -- is treated thoroughly in Marvin Olasky's Abortion Rites: A Social History of Abortion in America. Olasky corrects the slanted version of American history upon which the U.S. Supreme Court relied in Roe v. Wade.

Because abortion was not a right at the time of the adoption of the Ninth Amendment, there is no unenumerated right to abortion in the Constitution. The majority in Roe v. Wade (1973) instead seized upon and broadened a previously manufactured "privacy right" in order to legalize abortion. . . .

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

In effect, the Roe v. Wade majority acknowledged that abortion is not even an unenumerated right. It then manufactured from specified procedural rights enumerated in the Bill of Rights -- rights which are totally unrelated to abortion -- and from strained precedents involving "penumbras" and "emanations," a general right to privacy in order to find a "privacy" right to abortion. I have dissected a key precedent, Griswold v. Connecticut (1965), in the "Liberty" section of this post. It bears repeating that in drafting the Ninth Amendment Madison had in mind no particular unenumerated rights:
It is clear from its text and from Madison's statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.
It is therefore unsurprising that the majority in Roe v. Wade could not decide whether the general privacy right is located in the Ninth Amendment or the Fourteenth Amendment. Neither amendment, of course, is the locus of a general privacy right because none is conferred by the Constitution, nor could the Constitution ever confer such a right, for it would interfere with such truly compelling state interests as the pursuit of justice. The majority simply chose to ignore that unspeakable consequence by conjuring a general right to privacy for the limited purpose of ratifying abortion.

The spuriousness of the majority's conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:
The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
That is, the majority simply drew an arbitrary line between life and death -- but in the wrong place. It is as if the majority understood, but wished not to acknowledged, the full implications of a general right to privacy. Such a general right could be deployed by unprincipled judges to decriminalize a variety of heinous acts.

Underlying the majority's sophistry was its typically "liberal" reluctance to place responsibility where it belongs, in the hands of those persons who (in almost all cases) conceive through engaging voluntarily in an act, the potential consequences of which are well known. Thus we read:
Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . All these are factors the woman and her responsible physician necessarily will consider in consultation.
All these are factors which "the woman," barring rape, would have known before conception. . . .

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

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

The Supreme Court's subsequent decision in Casey (1992) is a step in the right direction. As blogger Patterico explains, Casey
1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a "“fundamental right"” under the Constitution; and 3) replaced Roe's trimester framework with a rule tied to viability.
The next step, or steps, should be to undo Roe v. Wade completely and then turn it around. The States have no basis for allowing abortion (except where a mother's physical health or life are endangered) because to do so deprives the fetus (a person) of due process of law and equal protection under the law, in violation of the Fifth and Fourteenth Amendments.

Abortion is Anti-Libertarian

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

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

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

But a fetus is neither an uninvited guest nor an invader. Rather, it is a life, and that life -- by biological necessity -- is its mother's responsibility:
  • Conception, in almost all cases, is the result of a consensual act of sexual intercourse. (Rape, which accounts for a relatively small number of applications for abortion, is an exception. But it's an exception that shouldn't dictate what happens in the majority of pregnancies. If the state insists that rape victims give birth (as it ought to because of the state's obligation to protect life), the state then takes responsibility for the adoption of those babies who may be unwanted by their mothers.)
  • Conception is a known consequence of the act of sexual intercourse. And it has been shown that when abortion becomes less readily available (e.g., more expensive),
    [t]his induces teenage girls to avoid risky sex, which will likely have the effect of lowering pregnancy rates, abortion rates, and birth rates among this group of individuals. . . . Behavior is not static, and claims based on the assumption of static behavior are flawed. [That is, "they" will not "just get pregnant, anyway": ED]
  • It has been shown, as well, that
    [l]aws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. . . . [O]ur results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. [So much for "back alley abortions": ED]
  • Life indisputably begins at conception:
    Surely the child is alive then [at the tying of the umbilical cord]. It cannot be the mere act of tying the cord that produced life. Then when did life begin? With respiration? That is only one added function. There was circulation previously, and the power of nervous action and motion. Why is not a fetus alive when it is diving and plunging in its mother's womb? Simply because its lungs are not inflated? Out on such nonsense! One might as well say that a child born blind was not alive because it did not use its eyes. It is on the record, I believe that children have been born by the Caesarean section, after the death of the mother. If there was no vitality in the fetus previous to respiration, then why was it not dead, like the mother? There can be no doubt of it, there was vitality or life. Then if we acknowledge that the fetus had life, how can we say at what period of gestation that life commences? The period of quickening varies, and I do not see why a fetus is not quite as much alive just before it moves as just after. . . . [From O.C. Turner, "Criminal Abortion," Boston Medical and Surgical Journal, Vol. 5 (April 21, 1870), pp. 299-300. Quoted by Marvin N. Olasky in Abortion Rites: A Social History of Abortion in America, Regnery Publishing, Inc., Washington, D.C. (1995), pp. 121-122.]
  • A person who conceives therefore has incurred an implicit obligation to care for the life that flows from her consensual act.
  • Given that the existence of a fetus cannot cause harm to anyone but its mother, the only valid route for terminating the life of a fetus would be a legal proceeding that culminates in a judicial determination that the continuation of the life of the fetus would cause grave physical harm or death to the mother.
A fetus, in sum, cannot be treated as "property," to be disposed of willy-nilly. A libertarian who argues otherwise can do so only by regarding the fetus a sub-human implantation for with the mother bears no responsibility. Such a libertarian might as well argue for a right to keep slaves or a right to dispose of dependent children and parents through involuntary euthanasia.

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

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

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

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

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

The Slippery Slope

If libertarians are to be faithful to libertarian principles, they must oppose the law even when -- especially when -- it puts convenience above principle. As I wrote here (modified language in brackets):
You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because [you just like them or because they comport with your half-baked notion of liberty]. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in "penumbras, formed by emanations" of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need -- as it has in done in many instances. . . .

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt's play about Sir Thomas More, A Man for All Seasons:
Roper: So now you'd give the Devil benefit of law.

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

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

More: Oh? And when the last law was down--and the Devil turned round on you--where would you hide? Yes, I'd give the Devil benefit of law, for my own safety's sake.
Libertarians who applaud the outcomes of such cases as Griswold v. Connecticut and Roe v. Wade because those outcomes seem to advance personal liberty are consorting with the Devil of statism. Every time the state fails to defend innocent life it acquire a new precedent for the taking of innocent life.

Thus we come to the slippery slope. As I wrote here:
[T]hink about the "progressive" impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening -- all of them steps down a slippery slope toward state control of human destiny.
In a later post I said that "the state is condoning and encouraging a resurgence of Hitlerian eugenics." If you think I exaggerate, consider this:

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

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

Amy Welborn makes this apposite comment:

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

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

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

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

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


Related posts:
I've Changed My Mind (08/15/04)
Next Stop, Legal Genocide? (09/05/04)
Here's Something All Libertarians Can Agree On
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening (09/11/04)
Creeping Euthanasia (09/21/04)
PETA, NARAL, and Roe v. Wade (11/17/04)
Flooding the Moral Low Ground (11/19/04)
The Beginning of the End? (11/21/04)
Peter Singer's Fallacy (11/26/04)
Taking Exception (03/01/05)
Protecting Your Civil Liberties
Where Conservatism and (Sensible) Libertarianism Come Together (04/14/05)
Conservatism, Libertarianism, and Public Morality (04/25/25)
The Threat of the Anti-Theocracy (05/03/05)
The Consequences of Roe v. Wade (06/08/05)
The Old Eugenics in a New Guise (07/14/05)
The Left, Abortion, and Adolescence (07/21/05)

Right Again?

President Bush has nominated Judge Samuel Alito to the Supreme Court. I wrote this on October 27:
  • But Bush had to seem to want to replace O'Connor with another woman.
  • Bush therefore chose Miers, whose nomination he knew would be fiercely opposed on the right.
  • Given Miers's position as White House counsel, her name could be withdrawn as a matter of principle (defense of the separation of powers).
  • Bush's withdrawal of the Miers nomination would not only please the right but also not be seen as a bow to the left.
The nominee isn't McConnell, but he's just as good as far as I can tell. The choice of Alito certainly isn't a bow to the left. As Max Goss says at Right Reason, " NPR has been throwing around terms like 'wacko' and 'radical' all morning. Must be a good guy." Hear, hear!

Sunday, October 30, 2005

"Equal Protection" and Homosexual "Marriage"

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

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

None of this would be happening if the "equal protection" clause hadn't long ago been turned upside down by loose constructionists. What "equal protection" really means is this:
Any law that is otherwise constitutional is a valid law, which must be applied equally to all persons.
As long as that law is applied equally to all persons, it is irrelevant if the application of the law happens to lead to unequal outcomes for various identifiable groups of persons. Instead, "equal protection" now means that everyone is entitled to the same outcome -- the law be damned.

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

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

Marriage, as an institution that comes under the jurisdiction of the States, should be governed by the laws of the States. A State court that decrees, without benefit of legislation, that marriage is available to homosexuals has made new law by applying the perverted meaning of the "equal protection" clause. A proper application of the "equal protection" clause by a State court would go something like this:
The legislature of this State, acting in accordance with the constitution of this State, has determined that marriage consists of a legal, binding, union between a man and a woman. Therefore, this court cannot institute homosexual marriage because to do so would dilute the benefits pertaining to marriage under the laws of this State, by requiring the State to transfer scarce resources to the support of homosexual unions, in violation of "due process" and "equal protection" clauses of the Fourteenth Amendment to the Constitution of the United States. All who come under the purview of a constitutional law are entitled to the protection of that law. All who do not may petition the legislature for a more encompassing law.
And so, even though marriage is a State-controlled institution, it would be within the purview of the U.S. Supreme Court to overrule a State supreme court's creation of a right to homosexual marriage without legislative authority. Why? Because the issue involved -- "equal protection" -- arises from an application of the U.S. Constitution.

Related posts:

A Century of Progress?
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)
States' Rights and Skunks (10/20/05)
Same-Sex Marriage (10/20/05)
Speaking of States' Rights and Judge McConnell (10/27/05)

Saturday, October 29, 2005

The Left's Double Standard on Harriet Miers

John Podesta, formerly a chief of staff to Bill Clinton and now a member of the Left's traveling pack of attack dogs (same thing), writes at Think Progress:

Harriet Miers' nomination fell victim to a right-wing double standard.

In his confirmation hearing, John Roberts affirmed the right to privacy, agreed with the conclusion of Griswold, and told the Judiciary Committee that he considered Roe v. Wade "“settled as a precedent."”

There is much in Harriet Miers'’ record to suggest she fell to the right of Roberts’ on the question of abortion rights. She does not consider Griswold settled law and had a record of supporting anti-choice causes.

John Roberts was enthusiastically embraced by right-wing conservatives eager to overturn Roe v. Wade. Harriet Miers was vilified by the exact same people.

Harriet Miers'’ nomination has always been controversial, but it was not until comments from a 1993 speech surfaced where she said she believed in "“self-determination" that Miers was presumably forced to withdraw.

It is clear that, absent an unambiguous pledge to overturn Roe, the right holds women nominees to a different standard. They do it because they fear a woman justice will feel empathy towards other women making the agonizing choice of whether to have an abortion. They fear that a woman justice would not be willing to use criminal sanctions to regulate other women's decisions.

No nominee should be subject to a litmus test, especially one that discriminates based on gender.

Podesta's hypocrisy knows no bounds. Imagine the impossible: Podesta on the talk-show circuit defending Harriet Miers's nomination because of her seemingly inconsistent views about abortion and her disdain for Griswold v. Connecticut.

The double standard on display is that of the Left, which prefers the litmus test of "diversity" to the litmus test of competence. Most conservatives who were outraged about Miers were outraged long before Miers's ramblings about "self determination" came to light. And they were outraged because of Miers's evident faults: little or no relevant legal experience, a muddled mind. In sum, conservatives put quality above diversity.

Such a concept would never cross the mind of a John Podesta, whose lack of interest in Miers's judicial qualifications is exceeded only by his cynical delight in conservative-bashing.

(Thanks to SCOTUSblog for the pointer.)

Thursday, October 27, 2005

Speaking of States' Rights and Judge McConnell

I wrote recently that
I favor States' rights -- as long as States' rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court's Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing's accidental embrace of States' rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States' rights in the defense of state-enforced segregation and denial of voting rights.
I'm reminded of the Stevens-Souter-Ginsburg-Breyer wing's cynical appeal to States' rights in Bush v. Gore. In Part I of Justice Ginsburg's dissent (joined by Justices Stevens, Souter, and Breyer), she wrote "Rarely has this Court rejected outright an interpretation of state law by a state high court." As if it were as simple as that.

Judge Michael McConnell, now considered a front-runner to replace Justice O'Connor, showed a much finer understanding of constitutional law when he wrote for OpinionJournal on Novemeber 24, 2000, about the then-unsettled case of Bush v. Gore:

One sentence of the Florida Supreme Court's decision on hand recounts tells it all: "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle."

That is like saying, of a disputed umpire call in the World Series: "Athletic superiority, not a hyper-technical reliance upon the rules of baseball, should be our guiding principle." In our system, the will of the people is manifested through procedures specified in advance. When those rules are changed in mid-stream, something has gone terribly wrong.

Article II of the U.S. Constitution provides: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." The Florida legislature has enacted a detailed election code, including an unambiguous deadline of seven days after the election for counties to report their results. No party to the litigation has argued that this statutory scheme is unconstitutional under either the federal or the state constitution.
As Judge McConnell pointed out on December 14, 2000, the majority in Bush v. Gore came to the right result but for the wrong reason:
[O]nly three justices--William Rehnquist, Antonin Scalia, and Clarence Thomas--were ultimately persuaded by the Article II argument. The majority rested entirely on the theory that the recount, as ordered by the Florida court, would violate the equal protection of the laws by failing to provide a uniform standard for vote counting, by counting some overvotes and not others, and by failing to recount the challenged results in Broward and Miami-Dade. That rationale was sufficiently uncontroversial to command widespread assent among the justices--even those presumably favorable to Mr. Gore. . . .

The court did not have the resolution to declare that no recount was necessary, or the patience to declare that a proper recount should proceed. That means, unfortunately, that Mr. Bush will take office under conditions of continued uncertainty. I do not think that part of the decision did him, or the nation, a favor.
Amen to that.

Understanding the Miers Nomination

Here's my "conspiracy theory" of the day:
  • But Bush had to seem to want to replace O'Connor with another woman.
  • Bush therefore chose Miers, whose nomination he knew would be fiercely opposed on the right.
  • Given Miers's position as White House counsel, her name could be withdrawn as a matter of principle (defense of the separation of powers).
  • Bush's withdrawal of the Miers nomination would not only please the right but also not be seen as a bow to the left.
Personally, if the real nominee is to be a male, I like David Bernstein's suggestion: Judge Douglas Ginsburg (he of the "Constitution in Exile").

Wednesday, October 26, 2005

The Economics of Corporate Fitness Programs

One of the many fads to sweep the corporate world in recent years is the fitness fad. The fad has two components: real costs and putative benefits. The real costs involve the installation of exercise facilities on company property, subsidies for off-site health-club memberships, a certain amount of paid time off for fitness programs, the hiring of nutritionists for company-subsidized cafeterias, and on and on. The putative benefits of the fitness fad are (1) more productive workers (healthy bodies, healthy minds, and all that); (2) workers who, in the longer run, will be less costly to insure; and (3) greater competitiveness in the labor market (i.e., being able to hire and keep employees who value fitness programs).

The fitness fad has five main proponents:
  • Executives who wish to be known as "progressive" and "interested in employee welfare"
  • Consultants who are hired by executives for the purpose of recommending the fitness programs that executives already favor
  • Vendors of fitness-related products and services
  • Those employees who already are physically fit, but who find it easier and cheaper to stay fit because of company programs
  • Other employees who want to be part of the "in" crowd or to curry favor with bosses who preach fitness.
As for the immediate benefits of company fitness programs, I have observed that the already-fit tend to stay fit, but at the company's expense, while the less-fit give fitness a try, but it doesn't last. If it did, Americans wouldn't be getting fatter, would they?

What about the returns to the company in the form of lower health-insurance costs? Health-care costs rise with age. Assuming that fitness programs actually make employees more fit, which I doubt, a company is unlikely to reap long-run returns unless (a) its employees are exceptionally loyal or (b) it is able to hire equally fit replacements from other companies that have similarly effective (or ineffective) fitness programs.

And what about hiring and retention? Well, it's like an arms race in which the objective isn't to fight a war but to spend more than the other guy. If "everyone does it" in a certain industry, here's what happens:
  • Workers who don't participate in fitness programs (that is, most of them) lose because compensation has been shifted from wages and non-fitness benefits toward fitness benefits. Therefore, that industry finds it harder to hire and retain workers for whom fitness isn't an important consideration; that is, productivity declines and costs rise.
  • If firms in the industry try to raise prices in order to cover the costs of fitness programs, consumers find substitute products or services, thus cutting into the industry's sales and profits.
  • And so, one way or the other, shareholders take a hit in the form of lower stock prices.
Who benefits? Trendy executives and employees who'd rather work out than work.

That's my hypothesis, and I'm sticking with it until I see hard numbers that prove it wrong.

Monday, October 24, 2005

Killing Conservatism in Order to Save It

EconoPundit quotes a Times column by David Brooks (not worth $50 a year to read online). A choice morsel:
Let's start by remembering where conservatism was before Bush came on the scene. In the late 1990's, after the failure of the government shutdown, conservatism was adrift and bereft of ideas.

Voters preferred Democratic ideas on issue after issue by 20-point margins.
Which was it David? Were conservatives bereft of ideas or did voters prefer Democrats' "ideas." Well, as Capital Freedom observes, " Free handouts get more votes than free markets." Democrats didn't (and don't) trade in ideas, they trade in bribery. The Bush-led GOP has simply followed suit.

The real problem in the late 1990s wasn't that conservatives lacked ideas, but that those ideas didn't happen to garner enough votes to defeat Bill Clinton and deliver overwhelming Republican control of Congress. But instead of regrouping around the functionally sound and widely accepted ideas of the "Contract with America," the GOP largely abandoned its conservative principles and sold its soul for a few more votes, thus joining Democrats in the bribery game.

Brooks, who is either deluded or stupid, nevertheless quotes Bush's defense of big government:
"Government should help people improve their lives, not run their lives," Bush said. This is not the Government-Is-the-Problem philosophy of the mid-'90s, but the philosophy of a governing majority party in a country where people look to government to play a positive but not overbearing role in their lives.
In other words, the GOP should bribe voters, but somehow restrain its bribery so that it's not quite as egregious as the kind of bribery practiced by Democrats. That simply won't work. The bribed (i.e., voters) won't let government off the hook unless and until they understand how bribery works against their own interests. The only way to get government out of our lives (or to push it toward the exit) is to oppose it in the first place, and to explain why voters should join in that opposition.

But Brooks applauds Bush's sophistry, even though it is indistinguishable (in essence) from the Left's excuses for big government: Government just needs to "fix things" because markets don't always get it right. People just can't be trusted to take care of themselves. Brooks fails to see (or wishes not to say) that Bush has simply adopted the Democrats' old game plan: Tax, spend, regulate, elect, tax, spend, regulate, elect, ad infinitum.

Well, Brooks's column proves one thing, with finality: He's a so-called conservative who is devoid of valid ideas, valid logic, and intellectual honesty. Brooks would kill true conservatism in the name of saving it. What's worse, he'd believe that he had saved it.

Saturday, October 22, 2005

A Useful Precedent

UPDATED BELOW AT 1:40 PM (CT) 10/23/05

Orin Kerr of The Volokh Conspiracy comments on a decision by the Kansas Supreme Court:
The Kansas Supreme Court issued its decision in Kansas v. Limon [yesterday], invalidating a Kansas statutory scheme that imposed higher punishments for same-sex sexual misconduct than opposite-sex sexual misconduct. . . .

Limon argued that Kansas law violated the equal protection clause of the Fourteenth Amendment because if the act had taken place between opposite sex participants, Limon would have received a much lower punishment . . . than he did. . . . The Kansas Supreme Court agreed, finding that the different treatment did not survive rational basis scrutiny and was therefore unconstitutional under the Equal Protection clause. . . .
It seems to me that (1) the Kansas Supreme Court's reasoning is correct and (2) the same reasoning can be applied to so-called hate-crime statutes, in which the penalty for a crime is based on its supposed motivation rather than its actual severity.

UPDATE: I knew that I should have addressed the distinction between motivation and intention. Because I didn't do so, a reader took issue with what I wrote above by suggesting (wrongly, I believe) that "the criminal law system is largely built on the fundamental premise of punishing crimes based on motivation rather than outcome." He pointed me to the Wikipedia article about manslaughter. I found the article about murder to be more helfpful in drawing the distinction between motivation and intention:
In law, murder is the crime of a human being causing the death of another human being, without lawful excuse, and with intent to kill or with an intent to cause grievous bodily harm. . . .
  • Unintentionally caused deaths due to recklessness or negligence are treated in most countries as the lesser crime of involuntary manslaughter or criminally negligent homicide
  • Intentional killings without premeditation are sometimes charged as voluntary manslaughter rather than murder.
The distinction between murder and voluntary manslaughter rests on the timing of intention -- whether or not the killer intended to kill the victim before the encounter that led to the victim's death. The distinction between voluntary and involuntary manslaughter rests on whether or not the killer intended to kill the victim. Proving motivation (or lack thereof) may be crucial to proving intention, and the timing of intention. But the distinctions between murder, voluntary manslaughter, and involuntary manslaughter revolve around intention and its timing with respect to the act of killing.

A hate crime, on the other hand is defined by motivation:
A hate crime is a crime (not necessarily a violent crime, though sometimes so) that is motivated by prejudice against a social group. . . .

In the last decade of the 20th century, legislation in many U.S. states has established harsher penalties for a number of crimes when they are also considered hate crimes. . . .

[H]ate crime prosecutions seek to punish an individual for motive rather than intent. For example, the difference between first or second degree murder is intent, not motive. . . .
In sum, the logic of hate-crime legislation plays out like this:
  • A (a man) murders B (a woman), with premeditation, after learning that B has embezzled funds from A. A's sentence is, say, 20 years to life, with the possibility of parole.
  • A murders B, with premeditation, after learning that B has been involved in a lesbian affair with A's wife. A is shown to have expressed his distaste for lesbianism. A's sentence is, say, life without parole.
In both cases A murders B with premeditated intent. But in the second instance A receives a harsher sentence because his motivation was animus toward lesbianism. I don't get it. Why is the crime worse because B is a lesbian rather than an embezzler? Murder is murder and ought to be treated as such by the law.

There's already more than enough mind-reading involved in drawing lines between various degrees of murder and manslaughter, not to mention other types of crime in which similarly fine distinctions arise. Hate-crime legislation compounds the already difficult task of mind-reading and widens the gap between the act (e.g., killing) and the punishment for that act.

The result is to give preference to certain identifiable groups (e.g., homosexuals) while, by implication, denigrating others (e.g., embezzlers). Or, to turn it around, the result is to treat the murderers of embezzlers more leniently than the murderers of homosexuals. Either way you look at it, hate-crime legislation seems to run afoul of the Fourteenth Amendment's guarantee of "equal protection of the laws."

Related posts:

I'll Never Understand the Insanity Defense (03/31/04)
A Crime Is a Crime (11/26/04)

Friday, October 21, 2005

The Corporation and the State

The existence of the corporation (and such similar entities as limited liability companies) encourages business and capital formation by mitigating investors' personal risks. Because the corporation is state-sanctioned, some apologists for the state like to argue that the existence of the corporation is a proof of the indispensibility of the state.

The existence of the corporation, in fact, proves no such thing. Absent the state, investors could indemnify themselves through private contractual arrangements, that is, insurance pools.

The state exists because powerful individuals and coalitions with an agreed agenda find it convenient to enforce that agenda through an entity that has a monopoly of power in a geographical area. The desirability of a particular state can be judged only by the extent to which its agenda fosters the unforced evolution of peaceful, voluntary, social and business arrangements.

What's Wrong with Game Theory

I took aim at a particular application of game theory in "Schelling and Segregation." Dave Patterson (Order from Chaos), offers a general critque of game theory. Here's a sample:
[G]ame theory has one major flaw inherent in it: The arbitrary assignment of expected outcomes and the assumption that the values of both parties are equally reflected in these external outcomes. By this I mean a matrix is filled out by an individual (we'll call them the conductor), it is up to that conductor's discretion to assign outcome values to that grid. This means that there is an inherent bias towards the expected outcomes of conductor.
Or: Garbage in, garbage out.

Thursday, October 20, 2005

Same-Sex "Marriage"

UPDATED BELOW AT 5:12 PM (CT) 10/20/05

Maggie Gallagher is guest-blogging at The Volokh Conspiracy on the topic of same-sex marriage (SSM). As a service to myself and others, below I list chronologically the titles of and links to the posts in the series. I include related posts by other Volokh bloggers (denoted by naming the blogger parenthetically).

Maggie Gallagher Guest-Blogging About Same-Sex Marriage (Eugene Volokh)The Marriage Debate (1)
The Marriage Debate (2)The Marriage Debate (3)
The Marriage Debate, Round 3 (or 4, but who’s counting?)
Marriage Debate Digression
Question for Maggie About Marriage (Todd Zywicki)The Legal Marriage Debate
Answer from Maggie About MarriageMaggie Answer on Marriage, P.S.
Two Reactions to the Gay Marriage Discussion (Eugene Volokh)
The Marriage Debate and ReproTech
Marriage Debate DataDump
The Marriage Debates: What's the Harm?
Question on the Marriage Debates (Orin Kerr)
The Marriage Debate, What's the Harm? (cont.)
Marriage Debate and Motives
Understanding the Argument (Orin Kerr)Gay Marriage for Some, or Unisex Marriage for All?
Is Marriage Innate? More Reply to Orin
A Frank Concession
Brief Rebuttals
The Marriage Debate, a few last thoughts


A few key points thus far:

[M]arriage serves many private and individual purposes. But its great public purpose, the thing that justifies its . . . unique legal status, is protecting children and society by creating sexual unions in which children are (practically) guaranteed the love and care of their own mother and father.
The vast majority of children born to married couples begin life with their own mother and fathers committed to jointly caring for them. Only a minority of children in other sexual unions (and none in same-sex unions) get this benefit.
Sex makes babies. Society needs babies. Babies need fathers as well as mothers. That's the heart of marriage as a universal human institution.
[Different post]
[F]undamentally marriage is sustained by culture, not biology. Why then is it universal? Because it is the answer to an urgent problem that is biological and innate: sex makes babies. Nature alone won’t connect fathers to children. Children need a society in which both men and women are committed to their care.
And thus to the socialization of those children and their fathers, without which a civil, self-regulating society in which we enjoy the fruits of liberty would be even more difficult if not impossible to realize. But that is all threatened if heterosexual marriage's status is threatened:

[T]he most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.
Marriage’s unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.
Redrawing the definitional boundaries of marriage, is thus fiddling with the law’s core remaining support for marriage (and we’ve withdrawn quite a few legal supports in recent years).
I really do think, btw, that this is what bothers most ordinary people: an instinct that their government, against their will, is telling them (and will re-educate their children) that everything they know about marriage (like the first ingredient is a husband and a wife, duh) is wrong and must now change. Upon penalty of being officially labelled bigots by their government. And everyone knows its open season on bigots in our society. . . .
If the principle behind SSM is institutionalized in law, and the law is able (as it is really pretty good at) to impose its values on the American people, then people like me who think marriage is the union of husband and wife importantly related to the idea that children need moms and dads will be treated in society and at law like bigots
And you are asking me why I think that might affect marriage?
I’ve sat in rooms where some of the most famous architects of gay marriage have made this analogy (the Christians who oppose gay marriage are just like those poor southern folks who favored segregation. We’ll be re-educating them soon, and they will cave.)
The conjugal vision of marriage itself is being stamped as discriminatory and bigoted. Well, under these circumstnaces, I’m pretty sure fewer people will hold it, speak for it, try to transmit it to the kids (over the interference of government schools, who will teach the next generation that SSM was a great civil rights victory over bigots like your parents). Perhaps, under these circumstances, very few people indeed will speak up for this conjugal view.
In sum, the recognition of SSM will legitimate the attacks on traditional marriage, weaken its allure, and thus weaken (further) its indispensible socializing role, which already has been weakened by another liberal desideratum: pushing mothers out of the home.

UPDATE 2: From the final post in the series:
[I]f you are advocating for SSM, you really do know that social meanings matter. You've made passionately clear that an identical institution called “civil unions” that delivered all the legal incidents of marriage just wouldn't be good enough, because it doesn’t mean the same thing. You seek to use the power of government to take all those accumulated meanings of marriage (which were not created by the government) and re-direct them to same-sex relations, and many of you clearly also want to discipline those who don’t accept your moral view. . . . And so many want to do this in the name of liberty, without even acknowledging what SSM is: the use [of] government power to impose a new morality on a reluctant people.
After SSM, the law will be committed to reclassfying the once-privileged conjugal vision of marriage—with its deep roots in the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen—as at best a private understanding and most likely a discouraged, discriminatory understanding of marriage.
If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad. So long as they have love, money and stability, fathers (or mothers) are equally dispensable. That's what "no difference" means. The institutions of government, including public schools, will begin to enforce this new concept of marriage. This is not a conservative case for marriage; it is the final triumph of the family diversity argument.
Related posts:

A Century of Progress?
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)

States' Rights and Skunks

In light of the preceding post, I want to make it perfectly clear that I favor States' rights -- as long as States' rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court's Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing's accidental embrace of States' rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States' rights in the defense of state-enforced segregation and denial of voting rights.

When it comes to the advancement of liberty, it is only fitting and proper to deploy every legal argument at one's disposal -- as I have tried to do in the preceding post. The old saying goes that you can't win a peeing contest with a skunk (i.e., the Left wing of the Supreme Court). My version goes like this: Sometimes you can't avoid a peeing contest with a skunk; that's when you stand back a safe distance and blast it with a fire hose.

When it comes to the defense of liberty, a timid bow to States' rights is no virtue and an attack on States' rights isn't always a vice.

Tuesday, October 18, 2005

Kelo, Federalism, and Libertarianism


Doug at Below the Beltway joins Scott Scheule of Catallarchy in arguing that Kelo v. City of New London was rightly decided in the 2004-5 term of the U.S. Supreme Court. The Supremes, as you undoubtedly recall, upheld the right of the City of New London, Connecticut, to condemn private property for redevelopment. The rationale, in brief: The city's redevelopment plan serves a public purpose under the "takings clause" of the Fifth Amendment because the plan enables the city to generate higher tax revenues.

Doug and Scott are buying into the argument that Kelo was rightly decided on federalism grounds; that is, the central government oughtn't intrude in matters best left to State and local governments. Scott says, in part, that
Kelo is undoubtedly a glorification of federalism. In a decision nothing short of miraculous, the liberal members of the Court deferred to a state’s judgment. Is that not precisely what a federalist should want? A professor once told me the true test of your belief in individual freedom is when you think people should be free to do even the things that you would prefer them not do.

I propose that, by the exact same token, the true test of your belief in states’ rights is when you think states should be free to do even the things that you would prefer them not do. The alternative is often to simply pick and choose which government, federal or state, you would like to defer to based on nothing more than your personal political preferences. It is not exactly an unpopular philosophy: indeed it is the policy of much of the Supreme Court today. Still, the blatant inconsistency seems unsatisfactory.

Assumedly many of us are federalists because we believe the federal government does things badly. Is there any reason why this principle, if true, should be the case in issues of, let us say, euthanasia or drug use, and not hold when it comes to issues of eminent domain?

There is a deep tension here.

And though, as Justice Thomas quite rightly perceived, “something has gone seriously awry” with the Court’s interpretation of much of the Constitution, I disagree there is something awry with the interpretation of this particular provision.

I expect this post to make me exceedingly [un?]popular in libertarian circles.
The post should make Scott exceedingly unpopular (temporarily, one hopes) because of its wrongheadedness. Being a libertarian and being a federalist are two entirely different things. A libertarian would oppose government land-grabbing regardless of which level of government is doing the grabbing. Scott simply has to decide whether he's a federalist or a libertarian.

Moreover, Kelo was not decided rightly, even when viewed through the lens of federalism. The key can be found in Doug's incorrect assertion that
[t]he 5th Amendment, as originally written, applied only to the Federal Government, not the states. It was only through several decades of tortured jurisprudence that we have come to accept the idea that the 14th Amendment "incorporated" most (but not all) of the provisions of the Bill of Rights and made them applicable to the states, thus giving Federal Courts jurisdiction to determine the Constitutionality of the actions of state and local governments in a way that they did not have under the Constitution as originally understood.
Now, whatever you may think about "incorporation," certain parts of the Bill of Rights were meant, from the beginning, to bear on certain kinds actions by any and all governments in the United States. The Fifth Amendment clearly belongs in that category, as do Amendments II, IV, VI, VII, VIII, and X.* It's important to remember that the U.S. Constitution wasn't meant (or written) as a "set of rules" applicable only to the central government but, rather, as a sorting out of the rights and powers of the newly created central government, the governments of the various States, and the people. The Bill of Rights must be understood as a clarification of that broader sorting out, and not simply as a set of restrictions on the central government.

Consider the Fifth Amendment, specifically:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
It was well understood in 1791 that the prosecution of almost all crimes was a matter for State action, which is why the Fifth Amendment specifically enumerates the kinds of cases that then came under the jurisdiction of the central government: "in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." Thus, given its main focus on crime and punishment, the Fifth Amendment clearly applies to the States as well as to the central government (no "incorporation" is necessary, thank you). The position of the "takings clause" -- in a string of clauses that clearly apply to the States -- means that the Fifth Amendment, from the moment of its adoption, was meant to proscribe takings by States (and their subordinate jurisdictions), when such takings aren't for "public use" (which means public use).

Kelo was wrongly decided, period.

UPDATE: Doug, as I hoped he would, has posted a reply to this post. He responds, first, to my statement that one must decide whether one is a libertarian or a federalist:
[T]he choice is not so much between being a libertarian and being a federalist as it is between being a libertarian and being faithful to the original understanding of the Constitution. Judicial activism can exist not only on the left, but also on the right and there have been those who have argued for what is essentially a form of libertarian judicial activism which concerns itself more with the results of a judicial decision than with whether that decision is a correct interpretation of the Constitution. If you believe that judges should be faithful to the original understanding and intent of the Constitution, as I do, then that means being a federalist.

Federalism was at the heart of the Constitution when it was drafted. The Federal Government and its institutions, including the Supreme Court, were intended to be weak as compared to the states. This can be seen in the Constitution itself, which strictly defined the powers of Congress and the President but has very little to say about the powers of the states.
Fine, but that leaves libertarians to fight for liberty while federalists fight for States' rights, whether or not those rights are compatible with liberty.

In any event, the original Constitution does say some things about the powers of the States, not the least of which is the second clause of Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Madison's view was that the federal Bill of Rights ought to be supreme. I quote from Irving Brant's The Bill of Rights: Its Origin and Meaning (1965 edition, pp. 49-50):
The next contention Madison took up [in 1789, as chairman of the House committee to consider and report amendments to the Constitution] was that a federal Bill of Rights was not needed because state declarations of rights were still in force. The solemn acts of the people in putting such declarations in their state constitutions, it had been said, could not be annihilated by their later establishment of a general government whose express purpose was "securing to themselves and posterity the liberties they had gained by an arduous conflict." (Here again the objectives of the American Revolution were defined in terms of the guarantees contained in bills of rights.)

Madison found this objection inconclusive. In the first place it was too uncertain ground on which to leave a matter considered so important by the people. "Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty."

Here Madison refuted in advance an argument later utilized to undermine the basic freedoms -- the contention that the defects in state bills of rights should be used to measure the purpose, force and extent of the federal guarantees. In reality, those defects were used as an argument for adoption of a strong federal bill of rights, instead of being evidence of weakness in the one adopted.

This brought Madison to the question of enforcement. It had been said that a federal provision would be useless "because it was not found effectual in the constitution of the particular States." True it was that there were few states in which the most valuable rights had not been violated. But it did not follow that they had no salutary effect against the abuse of power. He saw two great protective agencies that would support the federal guarantees of liberty. . . .

The other protection was to come from the states:

"[T]here is the great possiblilty that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a federal government admit the State Legislatures to be sure guardians of the people's liberties."

. . . The Constitution, [Madison] told the House, already contained wise and proper restrictions on the states in the words "No State shall pass any bill of attainder, ex post facto law, etc." There was more danger, he thought, of those powers being abused by state governments than by that of the United States.
Madison wanted the States to be bound by the Bill of Rights, morally as well as legally. Congress did restrict the applicability of the First Amendment to acts of Congress, but mainly because it saw First Amendment rights as being adequately protected by State constitutions (even though they weren't always). It is telling that Congress did not insert similarly restrictive language into Amendments II through VIII, that is, the other original amendments that prescribe specific rights. The omission speaks volumes about original intent, as do Madison's views.

If Chief Justice John Marshall, in Barron v. Mayor & City Council of Baltimore (1833), had chosen to invoke Madison's original intent, we would not be having this argument. The "takings clause" would have been understood to apply to the States and their subordinate jurisdictions. We would have been spared piecemeal "incorporation" of the Bill of Rights, which has yet to apply the "takings clause" to the States, as it should have in 1833.

I conclude that Barron was wrongly decided by a Chief Justice who went against the accepted view of the Bill of Rights. I again quote Brant, writing about the adoption of the Fourteenth Amendment (p. 322):
. . . Bingham . . . had the erroneous impression that the first eight amendments were intended to restrict both the federal and state governments. That belief was widely held among legislators, laity and lawyers during the first half century after the amendments were adopted, and it persisted even after Marshall's Supreme Court decided in Barron v. Baltimore (1833) that they did not apply to the states.
Why does Brant assert that there was from 1791 until 1833 (and even later) a prevailing "erroneous" impression about the scope of the first eight amendments? Here, Brant goes in a circle. The prevailing impression was erroneous because of Barron, which was decided 42 years after the adoption of the Bill of Rights. But Barron is where Brant rests his case. In particular, Brant says (p. 326)
that in a Constitution setting up a government of limited powers, any "limitations of power, if expressed in general terms," must apply to the government created by that instrument. [The quotation is from Marshall's opinion in Barron.]
But the first eight amendments are decidely not general. Nor does the original Constitution simply limit the power of the central government, it also limits the powers of the States both generally (in Article VI) and specifically (in Articles I and IV).

Brant hangs his hat on Barron, which flies in the face of Madison's intent and 42 years of acceptance of that intent by "legislators, laity and lawyers."

In sum, Kelo was wrongly decided because Barron was wrongly decided.
* If you still think that the Bill of Rights restrains only the central government, and not the States, read Amendments II, IV, V, VI, VII, VIII, and X together:
Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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.

Monday, October 17, 2005

Barking Up the Wrong Libertarian

Diana Hsieh (Noodle Food) points to an article at The Ayn Rand Institute's site by Peter Schwartz, in which Schwartz asserts this:
Libertarianism belligerently rejects the very need for any justification for its belief in something called "liberty." It repudiates the need for any intellectual foundation to explain why "liberty" is desirable and what "liberty" means. Anyone from a gay-rights activist to a criminal counterfeiter to an overt anarchist can declare that he is merely asserting his "liberty" -- and no Libertarian (even those who happen to disagree) can objectively refute his definition. Subjectivism, amoralism and anarchism are not merely present in certain "wings" of the Libertarian movement; they are integral to it. In the absence of any intellectual framework, the zealous advocacy of "liberty" can represent only the mindless quest to eliminate all restraints on human behavior -- political, moral, metaphysical. And since reality is the fundamental "restraint" upon men's actions, it is nihilism -- the desire to obliterate reality -- that is the very essence of Libertarianism.
I refuse to be lumped with the kind of libertarian to whom Schwartz refers, namely, the libertarian who is devoted to a mindless, "anything goes," libertarianism. For more, read my series, "Practical Libertarianism for Americans," which I summarize here. See especially Part III of the series ("The Origin and Essence of Rights") and sample my unorthodox libertarian positions at this collection of links.

My bottom line: True liberty -- the kind of liberty that advances happiness -- is incompatible with the removal of restraints on human behavior. If that makes me a Burkean conservative, in the mold of Friedrich Hayek, so be it.

But methinks that Schwartz vents his spleen on an increasingly uninfluential branch of libertarianism -- the anything-goes absolutists who adhere to anarcho-capitalism. I call them "fundamentalist" libertarians because their libertarianism is rooted in a priori beliefs that have little to do with the facts of human nature. I have addressed their baseless dogmas in many posts, including these:
Libertarian Nay-Saying on Foreign and Defense Policy (06/29/04)
Libertarian Nay-Saying on Foreign and Defense Policy, Revisited (07/23/04)
An Aside about Libertarianism and War (08/02/04)
More about Libertarian Hawks and Doves (09/24/04)
Defense, Anarcho-Capitalist Style (09/26/04)
The State of Nature (12/05/04)
Getting Neolibertarianism Wrong (04/19/05)
Fundamentalist Libertarians, Anarcho-Capitalists, and Self-Defense (04/22/05)
The Legitimacy of the Constitution (05/09/05)
Another Thought about Anarchy (05/10/05)
Anarcho-Capitalism vs. the State (05/26/05)
Rights and the State (06/13/05)
The Essential Case for Consequentialist Libertarianism (07/10/05)
But Wouldn't Warlords Take Over? (07/26/05)
Sorting Out the Libertarian Hawks and Doves (07/27/05)
A Paradox for Libertarians (08/04/05)
A Non-Paradox for Libertarians (08/15/05)
Liberty or Self-Indulgence? (10/10/05)
Thanks to Diana Hsieh for calling my attention to an Objectivist essay that comes fairly close to echoing my brand of libertarianism. I say "fairly close" because Schwartz appeals to a priori judgments about moral values, judgments which -- like those of "fundamentalist" libertarians -- seem unanchored in reality.


DWI usually means "driving while intoxicated." The more common offense, however, is "driving while incompetent." I've just returned from a quick round of errands, during which I observed a young female driver who:
  • Pulled up to a drive-by mailbox and then had to fumble for her mail. (Old female drivers are usually the ones who have to fumble for their mail when they pull up to a drive-by mailbox.)
  • Threw her mail in a slot and only then looked to see that she had used an "Express Mail" box.
  • Pulled forward and paused for a moment as if she were thinking about backing up (and into my car) in order to reach into the mailbox for her miscast mail.
  • Made an "Austin stop" (that is, slowed down) before pulling onto the street.
  • Proceeded to make an illegal U-turn and looped out into the traffic lane in order to do so, instead of staying in the turning lane. ("Well, officer, how was I supposed to make an illegal U-turn without making a illegal turning maneuver?")
  • Capped her performance by sporting an opaque "Kerry-Edwards" bumper sticker in her rear window (illegally, I'm sure).
Not counting her gender and relative youth against her (no sexist or agist am I), the young woman is at least a six-time loser. But I saw her in action for only a few minutes. Think what the rest of her life must be like.

Perhaps she is kind to her mother. But I have no reason to believe that, given her evident disregard for other persons.

Related posts:

Pet Peeves (04/06/04)
You're Driving Me Crazy (Revised Version) (06/21/04)