Constitutional Sleight of Hand: Implied Powers During the Founding Era

Constitutional Sleight of Hand: Implied Powers During the Founding Era

Despite the words of the U.S. Constitution, specifically the Commerce Clause and Necessary and Proper Clause, remaining constant over the past two centuries, the Supreme Court’s interpretation of their meaning and scope has not. When cobbled together they form the basis for so-called “Implied Powers.”

“The Congress shall have Power To…regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes”  (Article I, § 8, Clause 3)

“The Congress shall have Power To …make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  (Article I, § 8, Clause 18)

So what is the original public meaning of the Commerce and Necessary and Proper Clauses? And how have they become the “Elastic Clause” the Anti-Federalists feared?

Commerce with Foreign Nations

“The Congress shall have Power To…regulate Commerce with foreign Nations….”

Even before the Constitutional Convention in 1787, James Madison had long argued that exclusive power over foreign commerce should be vested in the national government. Under the Articles of Confederation, the states had the power to raise tariffs against goods from others states and from foreign nations, creating, as Madison put it, “rival, conflicting and angry regulations.”

In Federalist No. 42, Madison argues for lodging the power to regulate commerce among the states with Congress since “without this supplemental provision, the great and essential power of regulating foreign commerce, would have been incomplete, and ineffectual.”

Although Madison undoubtedly believed that the power to regulate foreign commerce was exclusive to the federal government, the proposition is not obvious from the text. Others have held that Congress’ power over foreign commerce is qualitatively greater than its power to regulate commerce among the states.

The courts have affirmed Congress’ extensive power over foreign commerce which was originally the “basis for Congressional regulation of maritime and admiralty affairs and its control of immigration.” Subsequently, the clause has been the basis for extending American criminal jurisdiction abroad.

Today, the Court allows the states less power to tax foreign commerce than they have to tax interstate commerce. The Supreme Court declared that a state tax affecting interstate commerce would be valid only if it were: (1) nondiscriminatory, (2) applied to an interstate activity that had a “substantial nexus” with the state, (3) apportioned fairly, and (4) connected to services that the state provided. Later, in Japan Line, the Court added two further considerations to taxation of a foreign instrumentality: (1) the danger of multiple taxation and (2) the danger that the tax may damage the need for federal uniformity.

Commerce Among the States

“The Congress shall have Power…To regulate Commerce…among the several States….”

The Commerce among the States Clause operates both as a power delegated to Congress and as a constraint upon state legislation. The narrowest definition of “to regulate” is to “make regular,” that is, to facilitate the free flow of goods, but not, except in cases of danger, to prohibit the flow of any good. Some scholars and jurists have supported that narrow definition. In 1886, the House Judiciary Committee declared that a proposed bill that would have prohibited the sale of oleomargarine was against the original intent of the Framers. The Committee reasoned that the purpose of the Commerce Clause was to prevent state barriers to commerce, not to give Congress the power to do the same.

Nonetheless, the Supreme Court has never formally accepted a limited view of what “to regulate” means. Chief Justice John Marshall saw the power to regulate as coextensive with the other delegated powers of Congress. He declared: “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” The manner in which Congress decides to regulate commerce, Marshall said, is completely at the discretion of Congress, subject only to the political check of the voters. Its exercise, therefore, is nonjusticiable.

Even if “regulation” is a political question, the definition of “commerce,” however, is not. It has an objective quality and is determinable by the courts. For scholars such as Randy Barnett, Richard Epstein, and Raoul Berger, commerce means the trading, bartering, buying, and selling of goods, and they include the incidents of transporting those goods.

Justice Clarence Thomas has embraced the limited definition of commerce as trade: “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” He noted that the etymology of the word com-merce meant “with merchandise.” Modern Supreme Court jurisprudence, however, regards commerce as comprising “economic activity” generally.

Commerce with the Indian Tribes

“The Congress shall have Power To …regulate Commerce…with the Indian Tribes….”

The Supreme Court has long assumed that the Indian Commerce Clause & Treaty Clause (Article II, § 2, Clause 2) granted Congress “plenary and exclusive power” over Indian affairs. But recent scholarship has cast serious doubt upon the proposition that the Framers intended the power to be exclusively in the hands of Congress. Under the Articles of Confederation, the delegates had difficulty drawing an acceptable line between state and national jurisdiction over Indian affairs, but all agreed there had to be some degree of concurrency. Notwithstanding the understanding of the Framers, Congress asserted plenary jurisdiction over the Indians. The Supreme Court has been highly deferential to congressional control of these relations.

Necessary and Proper Clause

“The Congress shall have Power To …make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The delegates to the Constitutional Convention declared that Congress should possess power to legislate “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.” The Committee of Detail took the resolution and particularized them into a series of enumerated congressional powers. This formalized the principle of enumerated powers, under which federal law can govern only as to matters within the terms of some power-granting clause of the Constitution. By including the Necessary and Proper Clause at the conclusion of Article I, § 8, the Framers set the criteria for laws that, even if they are not within the terms of other grants, serve to make other federal powers effective.

Although modern scholars often express bafflement at the Necessary and Proper Clause, the meaning and purpose would actually have been clear to an eighteenth-century citizen. The enumeration of congressional powers in Article I, § 8 is similar to the enumeration of powers that one would find in an eighteenth-century private agency instrument or corporate charter. That is not surprising, as the Founders viewed the Constitution as, in the words of James Iredell, “a great power of attorney,” in which the principals (“We the People”) grant power to official agents (the government). Eighteenth-century agency law understood that grants of power to agents generally carried implied powers in their wake: the enumerated, or principal, granted powers were presumptively accompanied by implied, or incidental, powers that were needed to effectuate the principal powers. As William Blackstone wrote, “[a] subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant.” Agency instruments accordingly often referred to “necessary,” “proper,” or (most restrictively) “necessary and proper” incidental powers of agents. A Committee of Detail composed of lawyers and a businessman would have written, and a public accustomed to serving as or employing agents in a wide range of everyday affairs would have recognized, the Necessary and Proper Clause as a provision clarifying the scope of incidental powers accompanying the grants of enumerated congressional powers.

So understood, the Framers crafted the Necessary and Proper Clause to serve three great purposes. The first was to facilitate organization of the government. The second was to help effectuate the other enumerated powers of Congress. The third, and most general, was to define the limits of these implied or incidental powers.

As to the first purpose, the Constitution could not prescribe all points of government organization. Edmund Randolph proposed empowering Congress to “organize the government.” James Wilson proposed the “necessary and proper” clause as a substitute, authorizing laws “for carrying into Execution” the “other” federal powers. The organizational function of this clause was recognized from the outset. Among Congress’s first acts were establishing executive departments and staffs, determining the number of Justices of the Supreme Court.

As to the second purpose, the clause also supports laws for carrying into execution “the foregoing Powers,” specified for the legislature in Article I, § 8. Enhancing other powers given to Congress. During the ratification debates, opponents argued that it subverted the principle of enumerated powers by giving sweeping general legislative competence to Congress. The Anti-Federalist Brutus said it “leaves the national legislature at liberty, to do everything, which in their judgment is best.” Defenders of the Constitution strongly disagreed. James Wilson, the author of the clause, explained that the words “necessary and proper” are “limited and defined by the following, ‘for carrying into execution the foregoing powers.’ It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” It authorizes what is “necessary to render effectual the particular powers that are granted.” Congress thus can make laws about something otherwise outside the enumerated powers, insofar as those laws are “necessary and proper” to effectuate federal policy for something within an enumerated power.

The third purpose has the broadest implications. The Articles of Confederation expressly forbade any inference of incidental powers by specifying that “[e]ach state retains . . . every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States.” The Constitution contains no such clause, and it is therefore appropriate to find some measure of implied congressional powers. Had the Constitution been silent about implied powers, the ordinary background rules of agency law would have mandated inferring some measure of such powers to effectuate the enumerated powers, but would have left uncertainty about how broadly or narrowly to construe the implied powers. By selecting a relatively restrictive phrase—“necessary and proper,” in the conjunctive, the Constitution eliminated that uncertainty by limiting implied powers to those that bear a close relationship to the principal powers.

Accordingly, every law enacted under the Necessary and Proper Clause must meet four requirements: (1) it must be incidental to a principal power; (2) it must be “for carrying into Execution” a principal power; (3) it must be “necessary” for that purpose; and (4) it must be “proper” for that purpose. And, because the clause provides that all such laws “shall be” necessary and proper for executing federal powers, rather than prescribing that such laws “shall be deemed by Congress” to be necessary and proper, these inquiries are all objective.

Cops Kill 8 Year Old Girl, Charge Two Teens With Murder

Cops Kill 8 Year Old Girl, Charge Two Teens With Murder

In Pennsylvania, the Delaware County District Attorney’s Office has charged two individuals with first-degree murder and related offenses in connection with the August 27 police shooting of 8-year-old Fanta Bility.

In a statement, the DA’s Office said that Angelo Ford, 16, of Sharon Hill, had been arrested, and that law enforcement was looking for Hasein Strand, 18, of Collingdale. The pair allegedly got into an argument at a football game and fired shots at each other near the stadium.

Neither Angelo “A.J.” Ford, 16, nor Hasein Strand, 18, fired that fatal shot. A police officer did, but the two teens were charged under the concept of transferred intent, which allows the state to prosecute someone for a crime he didn’t technically commit as long as it happened during the commission of a related offense.

On August 27, Ford allegedly threatened Strand and his friends with a handgun at an Academy Park High School football game, prompting Strand to retrieve his own firearm from his vehicle.

It would not be the first time that police have used the legal doctrine to deflect responsibility onto someone else for a tragic accident. As was recently reported by the Libertarian Institute, an Idaho woman was charged with manslaughter after a police officer killed another officer with his vehicle while responding to the woman’s apparent mental health crisis. Though an internal investigation revealed that the officers had failed to follow safety protocols that evening, Jenna Holm spent over a year in jail awaiting trial on that homicide charge. A judge eventually struck the charge down as unconstitutional.

The doctrine of transferred intent is inherent to the contentious felony murder rule. It’s how, for example, prosecutors in Ohio were able to zero in on a teenager for the murder of her boyfriend after a police officer killed him during a botched robbery.

There are serious issues with the way this somewhat esoteric common law doctrine is being manipulated in U.S. criminal law.

Transferred intent is used when a defendant intends to harm one victim, but then unintentionally harms a second victim instead. In this case, the defendant’s intent transfers from the intended victim to the actual victim and can be used to satisfy the mens rea element of the crime that the defendant is being charged with. The transferred intent doctrine is only used for completed crimes, and is not used for attempted crimes.

So, if neither of the two defendants fired the bullet that killed this 8 year old girl, how does charging them with her murder all the same possibly satisfy mens rea? And in what way can this possibly be a completed, rather than an attempted crime?

“I want the focus to remain on the Sharon Hill police officers whose negligent and reckless behavior in reacting as they did is what killed Fanta Bility,” Bruce Castor, an attorney for the family, told The Philadelphia Inquirer. “From the point of view of the Bility family, these officers killed Fanta, and they need to be held accountable for that, and those responsible for their supervision and training need to be held accountable for that.”

But justice for the victim will likely come second to the more important matter: the state protecting its own, first and foremost.

Bility’s family has filed a civil suit against the officers and the police department. It’s questionable that her family members will ever get the opportunity to state their case before a jury, as they will need to overcome qualified immunity. So, too, will they face an uphill battle in suing the department, as the Monell doctrine will require they prove that the government had a specific policy in place that explicitly propagated the behavior that evening.

When the police officer files a pre-trial motion to dismiss, it is unlikely the family will be able to find a sufficiently similar case that has been upheld in the past.

Mandatory Vaccination and the Failure of Modern Constitutional Law

Mandatory Vaccination and the Failure of Modern Constitutional Law

Stare Decisis is an old Latin phrase meaning “Let wrong decisions of the Court stand.” The term is more commonly spoken of today as the common-law doctrine of precedent.

During the COVID-19 crisis, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was meant to be very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors.

Recent research on the part of constitutional law scholar Josh Blackman, his article “The Irrepressible Myth of Jacobson v. Massachusettsdemonstrated that over the course of a century, four prominent justices established a mythical narrative surrounding Jacobson v. Massachusetts that has obscured any historical view of this case as either a matter of law or fact. This myth has four levels:

  1. The first level was layered in Buck v. Bell (1927). Justice Oliver Wendall Holmes Jr. recast Jacobson’s limited holding to support forcible intrusions onto bodily autonomy. The Cambridge law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime.
  2. The second level was layered in 1963. In Sherbert v. Verner, Justice William J. Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises.
  3. The third level was layered in 1973. In Roe v. Wade, Justice Harry Blackmun incorporated Jacobson into the Court’s modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions.
  4. The fourth layer is of recent vintage. In South Bay Pentecostal Church v. Newsom, Chief Justice John Roberts’ “superprecedent” suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges.

This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine, and did not rely on Jacobson. But Jacobson stands ready to open up an escape hatch from the Constitution during the next crisis. The Supreme Court should restore Jacobson to its original meaning, and permanently seal off that possability.

Instead, Chief Justice Roberts wrote an influential concurring opinion. He favorably cited Jacobson, and wrote that, “Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” In short order, this concurrence became a “superprecedent.” Over the following six months, 140 cases cited the solo opinion, and more than 90 of which also cited Jacobson. It isn’t clear that the chief justice intended to adopt Jacobson’s constitutional analysis as a general rule to review pandemic measures

Jacobson v. Massachusetts was decided in February 1905, two months before the Supreme Court handed down Lochner v. New York. This period was known politically as the Progressive Era, and legally as the Lochner Era. Constitutional law was very different at the turn of the twentieth century. When reviewing decisions from this epoch, it is important to view them in the timeframe in which they were decided. It is anachronistic to view these cases through the lens of modernity. And it is problematic to graft these early cases onto the modern framework of constitutional law. Yet, courts and scholars routinely make these errors. Part I will provide a brief history of constitutional law from the Lochner era to the present. First, we will revisit the Fourteenth Amendment, as it was understood in 1905. At the time, there were no tiers of scrutiny, the Supreme Court did not distinguish between fundamental and non-fundamental rights, and the Bill of Rights had not yet been incorporated. So-called rational basis review was actually somewhat rigorous. Moreover, the Court treated economic property rights in the same fashion as personal liberty.

In 1905, the Supreme Court’s Fourteenth Amendment case law was primordial. The Privileges & Immunities Clause was an empty vessel. States were not bound by the Bill of Rights. And separate was equal. This jurisprudence was far removed from modern doctrine. The Supreme Court had not yet carved the tiers of scrutiny. There was no divide between rational basis scrutiny and strict scrutiny. Nor was there a sharp dichotomy between fundamental and non-fundamental rights. Yet, cases from the Progressive Era invoked concepts and terms that seem familiar to present-day students of constitutional law, but had very different meanings.

The Evolution to Modern Constitutional Law

Modern constitutional doctrine would begin, in earnest, three decades after Jacobson. The Supreme Court’s Progressive Era approach to the Fourteenth Amendment largely subsided during the New Deal. The Supreme Court’s present-day approach to the Due Process Clause springs from Footnote Four of United States v. Carolene Products. Justice Harlan F. Stone wrote the majority opinion. The first paragraph of Footnote Four stated that courts should not review with the presumption of constitutionality legislation that “appears on its face” to violate “a specific prohibition of the Constitution.” Specifically, that presumption of constitutionality is not warranted when a law runs afoul of rights protected by “the first ten Amendments.” For example, the Court should not use the presumption of constitutionality to review a law that violates the freedom of speech. Instead, the Court should invert the presumption of constitutionality to what may be called a presumption of liberty. With this approach, the government has the burden to justify why it is violating that enumerated right. The Court would later refer to this model as “strict scrutiny.” There was an unstated implication in the first paragraph of Footnote Four: nonfundamental rights that did not to violate “a specific prohibition of the Constitution” would be reviewed with the presumption of constitutionality. That is, most laws that burdened unenumerated rights would be reviewed with a deferential standard of review.

Jacobson and Lochner in 1905

Around the turn of the twentieth century, states began to require people to be vaccinated against smallpox. And courts upheld these measures as constitutional exercises of the police power. In 1902, Massachusetts enacted such a law. Later that year, the city of Cambridge prosecuted Henning Jacobson for refusing to get vaccinated. Jacobson, a Lutheran Evangelical Minister, argued that the law violated the state and federal constitution. After a trial, Jacobson was convicted, and ordered to pay the maximum permissible fine: $5. The Massachusetts law did not allow the Commonwealth to forcibly vaccinate Jacobson. An unvaccinated person who paid the fine was free to spread smallpox, and still be fully compliant with the law.

The Massachusetts Supreme Judicial Court upheld Jacobson’s conviction. It found that individual liberty could be restricted to promote the common welfare. On appeal, the United States Supreme Court agreed.

Justice John Marshal Harlan wrote the majority opinion. So long as there was reasonable fit between the measure adopted, and the government’s interest was to promote public health, the law is valid. Still, Jacobson identified several limitation on its holding that are often disregarded in modern discourse.

We must juxtapose Jacobson with the infamous case of Lochner v. New York. The two cases, which were decided two months apart, are cut from the same constitutional cloth. Both of these cases should be viewed as byproducts of the early twentieth century jurisprudence. To understand Jacobson, we must understand Lochner.

A number of states put in place steep fines and penalties for non-compliance to vaccine requirements. Still, despite all of these draconian measures, the states did not purport to have the power to forcibly vaccinate people. By 1905, “not one of the states undertakes forcible vaccinations of its inhabitants, while the states of Utah and West Virginia expressly provide that no such compulsion shall be used.” Jacobson’s counsel, J.W. Pickering “contended that the rights of man under the constitution were such that the enforcement of the vaccination law took them away.”

Pickering added that vaccination “was a great menace to individual rights.” Moreover, “certain members of the medical fraternity did not believe in vaccination.” However, Judge McDaniel ruled that he could not pass on the constitutionality of the law in that court. Judge McDaniel ordered Jacobson to pay a fine of $5.

First, the Court placed the Massachusetts law in the broader context of public health laws. “Sometimes it is necessary,” Massachusetts Supreme Court Chief Justice Marcus Perrin Knowlton wrote, “that persons be held in quarantine.” Moreover, “Conscription may be authorized if the life of the nation is in peril.” Other state courts had upheld the power to require vaccinations “as a prerequisite to attendance at school.” From these precedents, the Court reasoned that the state has the power to mandate vaccinations for the entire populace. Here, the Court favorably cited decisions from “the highest courts of Georgia and North Carolina” which upheld “statutes substantially the same as the one now before us.” The Court rejected Jacobson’s claims based on the Due Process Clause. He stated that “[t]he rights of individuals must yield, if necessary, when the welfare of the whole community is at stake.” Chief Justice Knowlton cited several prominent U.S. Supreme Court decisions, including Powell v. Pennsylvania, Yick Wo v. Hopkins, and Mugler v. Kansas. These cases recognized that “if a statute purports to be enacted to promote the general welfare of the people, and is not at variance with any provision of the Constitution, the question whether it will be for the good of the community is a legislative, and not a judicial, question.” Third, the Court identified a limitation on its holding: the penalty was modest, and the state did not actually force people to get vaccinated. But the Court recognized the analysis would be different if the law did in fact force people to get vaccinated.

More than a century later, Justice Neil Gorsuch described the narrow scope of the Cambridge law: “individuals could accept the vaccine, pay the fine, or identify a basis for exemption.” He added that “the imposition on Mr. Jacobson’s claimed right to bodily integrity, thus, was avoidable and relatively modest.”

On appeal, Jacobson narrowed his arguments to five grounds. He limited his assignments of error to federal questions, and excluded all claims under the Massachusetts Constitution. First, Jacobson claimed that the law “was in derogation of the rights secured…by the preamble to the Constitution…and tends to subvert and defeat the purposes of said Constitution as there declared.” Second, he asserted that the law violated the Self Incrimination Clause, the Due Process Clause, and the Takings Clause of the Fifth Amendment. Third, Jacobson argued that the law violated Section One of the Fourteenth Amendment. Fourth, he claimed the law “was repugnant to the spirit of the Constitution of the United States.” Fifth, Jacobson alleged that the trial court erred by excluding his offers of proof about the vaccine’s harmfulness, which “tended to prove” that the law was “unconstitutional and void.”

The Supreme Court affirmed Jacobson’s conviction. Justice John Marshall Harlan wrote the majority opinion. Justices David Josiah Brewer and Rufus W. Peckham dissented without a written opinion. The Court rejected Jacobson’s first argument based on the preamble to the United States Constitution. Justice Harlan wrote that the preamble “has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments.”

To this day, courts cite Justice Harlan as the canonical statement for the relevance of the preamble. The Court did not address Jacobson’s second argument based on the Fifth Amendment. Justice Harlan quickly dispatched “without discussion” Jacobson’s fourth argument based on the “spirit” of the Constitution. He found there was “no need in this case to go beyond the plain, obvious meaning of the words in those provisions of the Constitution which, it is contended, must control our decision.” With respect to the fifth claim, the Court stated that the “mere rejection of defendant’s offers of proof does not strictly present a Federal question.”

The bulk of the opinion focused on the third assignment of error: Section One of the Fourteenth Amendment. The Court rejected Jacobson’s argument that the Massachusetts law violated the Privileges or Immunities Clause of the Fourteenth Amendment. The Court also rejected Jacobson’s argument based on the Equal Protection Clause of the Fourteenth Amendment.

The remainder of Jacobson considered the Due Process Clause of the Fourteenth Amendment. The Court posed the central question: “Is the statute, so construed, therefore, inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the state?” The Court answered no. Justice Harlan’s analysis of the Due Process Clause had four primary parts.

First, the Court explained the relationship between individual liberty and the state’s police power. Justice Harlan wrote that the Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” All people can be subjected to “manifold restraints” to promote “the common good.”

Finally, the Court offered a two-part test to determine whether the Massachusetts law was valid. First, the Court asked “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has [a] real or substantial relation to those objects.” Second, the Court asks if the law “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” In either case, the Court has “the duty…to so adjudge, and thereby give effect to the Constitution.” The test resembles the sort of means-ends scrutiny that would become a staple of constitutional adjudication.

Justice Harlan’s opinion was broad. But the Court identified four limits, and implied a fifth constraint. First, structural constraints limit the state’s police powers. Second, the Court recognized that the statute cannot be enforced against a person for whom the vaccine would be particularly dangerous (“In perfect health and a fit subject of vaccination”). Third, Justice Harlan recognized that a vaccine mandate could not be enacted based on pretextual motivations: “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects,” then “it is the duty of the courts to so adjudge, and thereby give effect to the Constitution” which was enacted to “promote the common welfare.”

Fourth, the Court acknowledged that the government could not violate certain individual rights. Justice Harlan wrote, “There is, of course, a sphere within which the individual may assert the supremacy of his own will.” And if that sphere is encroached, people may “rightfully dispute the authority of…any free government existing under a written constitution, to interfere with the exercise of that will.” But that principle only went so far. Individual liberty “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Justice Harlan drew the line at arbitrariness. The police power cannot be “exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner.”

Such an irrational requirement, Jacobson’s fifth constraint is implied, but is significant: the Court only upheld a small fine for going unvaccinated. The law did not actually require people to get vaccinated. Jacobson argued only that “his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination.” Having to pay the fine, Jacobson contended, was itself a violation of liberty, even if he was not forced to receive the vaccination. The case did not, and indeed could not, resolve the question of whether the state could force a person to undergo a medical procedure. Moreover, the fine was modest. Five dollars is roughly $150 in present-day value. (Justice Gorsuch rounded down to “about $140.”)

The narrow scope of Jacobson is linked to the narrow regime from Cambridge as applied to Jacobson’s specific dispute. The holding was expressly limited to this instance. Jacobson’s final sentence is worth repeating: “We now decide only that the statute covers the present case…” Over the next century, many judges would ignore this statement, and extend Jacobson to circumstances Justice Harlan could not have even fathomed.

Jacobson in the Roberts Court

On October 6, 2020, New York Governor Andrew Cuomo imposed new restrictions on public gatherings in houses of worship. These policies were challenged by the Roman Catholic Diocese of Brooklyn, Agudath Israel of America, and other parties. The district court declined to enjoin Cuomo’s policy. It expressly recognized that Chief Justice Roberts “relied on Jacobson.” The court wrote, “in light of Jacobson and the Supreme Court’s recent decision in South Bay, it cannot be said that the Plaintiff has established a likelihood of success on the merits.” On November 9, the Second Circuit affirmed based on the South Bay concurrence. In dissent, Judge Park assailed Jacobson. He wrote, “Jacobson does not call for indefinite deference to the political branches exercising extraordinary emergency powers, nor does it counsel courts to abdicate their responsibility to review claims of constitutional violations.” That circuit court decision would be the last hurrah for the South Bay concurrence, and the fourth level of Jacobson’s myth.

The composition of the Supreme Court had changed since South Bay. Justice Ginsburg passed away, and was replaced by Justice Amy Coney Barrett. She took the judicial oath on October 27, 2020. And on November 12, the Roman Catholic Diocese of Brooklyn sought an injunction from the new Roberts Court. Later that evening, Justice Alito delivered the keynote address at the Federalist Society National Lawyers Convention. He spoke at some length about COVID-19, religious liberty, and Jacobson:

So what are the courts doing in this crisis, when the constitutionality of COVID restrictions has been challenged in Court? The leading authority cited in their defense is a 1905 Supreme Court decision called Jacobson v. Massachusetts. The case concerned an outbreak of smallpox in Cambridge. And the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading. Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge. But to return to the serious point, it’s important to keep Jacobson in perspective. Its primary holding rejected a substantive due process challenge to a local measure that targeted a problem of limited scope. It did not involve sweeping restrictions imposed across the country for an extended period. And it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion.

On November 25, shortly before midnight, the Supreme Court decided Roman Catholic Diocese of Brooklyn v. Cuomo. The majority halted New York’s regulations. The per curiam opinion was unsigned. But, by process of elimination, we can infer that Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett were in the majority. Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan were in dissent. With Justice Barrett’s replacement of Ginsburg, the conservative court formed a new 5-4 majority.

The unsigned per curiam opinion was very short at less than 2,000 words. It did not cite Jacobson, or the Chief Justice’s South Bay concurrence. The mythical precedent of 1905 and the superprecedent of 2020 played no part in the Court’s decision. In Roman Catholic Diocese, the Court effectively repudiated the South Bay concurrence, and in the process, cast some doubt about the continued vitality of Jacobson—at least with respect to Free Exercise Clause cases. For our purposes, the most important aspects of the case were Justice Gorsuch’s concurrence and Chief Justice Roberts’ dissent. The two writings sparred over Jacobson.

Justice Gorsuch wrote a four-page concurrence in Roman Catholic Diocese and offered a stinging criticism of the South Bay concurrence. Gorsuch wrote that “a majority of the Court [now] makes…plain” that “courts must resume applying the Free Exercise Clause” to review COVID-19 measures “rather than applying a nonbinding and expired concurrence from South Bay.” Indeed, Gorsuch wrote that the South Bay concurrence “was mistaken from the start” because “[t]o justify its result,” the Chief Justice “reached back 100 years in the U. S. Reports to grab hold of our decision in Jacobson v. Massachusetts.” But, Gorsuch stressed, “Jacobson hardly supports cutting the Constitution loose during a pandemic.” Justice Gorsuch then wrote four paragraphs that addressed each of the four levels of Jacobson’s myths. Gorsuch forcefully rejected the first, second, and fourth levels, but he seemed to accept the third level.

First, Gorsuch recited the actual facts of Jacobson. He did not accept the first level of Jacobson’s myth from Buck v. Bell. Gorsuch wrote that the Cambridge law “required individuals to take a vaccine, pay a $5 fine, or establish that they qualified for an exemption.” There was no forcible mandate to be vaccinated. People could instead choose to pay a modest fine. Indeed, Gorsuch converted the $5 fine to present-day value as $140. Justice Gorsuch’s reading of Jacobson closely tracked my own, which I articulated prior to Roman Catholic Diocese. And I offered the same calculation, but rounded up to $150.

Second, Gorsuch rebuked the second layer of Jacobson’s myth from Sherbert v. Verner: the 1905 precedent has no bearing on laws that burden enumerated rights, like the free exercise of religion. Gorsuch explained that “Jacobson pre-dated the modern tiers of scrutiny.” He added, “[t]hat decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.” Specifically, Jacobson asserted what we would now call an “implied ‘substantive due process’ right to ‘bodily integrity’ that emanated from the Fourteenth Amendment.” Gorsuch’s choice of the verb “emanated” seemed to mock Griswold v. Connecticut. Justice Douglas’s infamous decision intoned that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Justice Gorsuch completed the barb in the next sentence: “Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise.”

Beneath the snark, Justice Gorsuch made an essential point: to the extent Jacobson has any vitality, the precedent only affects cases that involve unenumerated substantive due process rights. Jacobson should have no bearing, whatsoever, on laws that restrict “textually explicit rights” in the Bill of Rights, such as the “right to religious exercise.” Gorsuch added that “nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights” like New York’s restrictions on “traditional forms of worship.”

Third, Justice Gorsuch seemed to accept, at least by implication, the third layer of Jacobson’s myth from Roe v. Wade. He did not disagree that Jacobson was the appropriate framework to review substantive due process cases during the pandemic. Specifically, he contended that Jacobson “essentially applied [modern] rational basis review.” I disagree. The standard of review from Jacobson does not resemble modern day constitutional law. Jacobson’s test did not serve as a progenitor of the modern rational basis test. It is a mistake to conflate the two doctrines. If anything, Jacobson was more rigorous than modern rational basis review.

Here, I think Justice Gorsuch overreached. It was sufficient to simply find that the 115-year-old opinion predated modern constitutional law, and leave it there. Jacobson should be interred, not revived. Still, I agree with Gorsuch that Cambridge’s law would have “easily survived rational basis review.”

Fourth, Gorsuch rejected the fourth mythical gloss that Chief Justice Roberts placed on Jacobson: the deferential precedent is not a rubber stamp for all government actions during a pandemic. He stated, unequivocally:

Jacobson didn’t seek to depart from normal legal rules during a pandemic, and it supplies no precedent for doing so.

This argument is anachronistic. When Jacobson was decided, the “normal legal rules,” as we understand them today, did not exist. The better explanation is that Jacobson does not provide an escape hatch from modern constitutional doctrine.

The Chief Justice of the United States had no response to the hundred-plus federal judges who read Roberts’ “superprecedent” as embracing Jacobson. Jurists across the country managed to glean the same understanding of Jacobson. I find it highly unlikely that all of these judges misread a Supreme Court decision. The far more plausible conclusion is that Roberts sent an unmistakable signal to the lower courts. The inescapable implication of the Chief Justice’s concurrence is that Jacobson played a role in Robert’s constitutional calculus. Judges of all stripes saw what Gorsuch saw. There was not more than meets the eye. The rule was staring everyone in the face.

Roberts turned a blind eye as the judiciary consistently—and apparently erroneously—misread his opinion.

The South Bay concurrence has taken on a life of its own, far beyond the Chief’s intentions.” Whether intentional or not, Roberts provided critical and timely guidance for the lower courts. And in Calvary Chapel and Roman Catholic Diocese, the Chief Justice made no effort to disabuse those judges of their apparent errors. From my vantage point, Roberts was content that his understated concurrence nudged judges to adopt a constitutional framework from 1905.

Roman Catholic Diocese, and in particular Justice Gorsuch’s concurrence, laid bare the fourth level of Jacobson’s myth. A public health emergency does not give rise to an alternative standard of review. Still, some courts continue to follow Jacobson. Indeed, district court judges, bound by circuit precedent, may have their hands tied. However, from my read of the emanations and penumbras from the shadow docket, Roman Catholic Diocese has largely eclipsed Jacobson.

Conclusion

For a century, Jacobson v. Massachusetts was largely an obscure precedent. Yet, in a quartet of landmark cases—Buck v. Bell, Sherbert v. Verner, Roe v. Wade, and Roman Catholic Diocese of Brooklyn v. Cuomo—Justices invoked Jacobson. These simple citations elevated a narrow Lochner-era precedent into a complex, four-leveled myth.

First, under Jacobson, the federal government could forcibly sterilize people to promote the common good. Second and third, Jacobson provides an escape hatch from the tiers of scrutiny; the government has emergency powers to abridge enumerated and unenumerated rights. Fourth, during public health crises, courts must provide across-the-board deference to the government. Jacobson said nothing at all about these four principle. But Jacobson had been retconned to support each myth. During the COVID-19 pandemic, courts reflexively relied on the mythicized account of Jacobson to rubberstamp unprecedented restrictions on individual freedom. Yet, I suspect these cases would have come out in the exact same fashion even if Jacobson had never been decided. Judges of all stripes have a natural tendency to exercise restraint in times of crisis.

Justice Gorsuch launched a fusillade at those judges who relied on Jacobson to defer to COVID measures. He asked, “Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic?”

Putting aside the Chief Justice’s South Bay concurrence, Gorsuch could “only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis.” Justice Gorsuch concluded that “things never go well” when judges “shelter in place when the Constitution is under attack.” He added, “Jacobson hardly supports cutting the Constitution loose during a pandemic.”

Jacobson proved to be a useful prop for judges who otherwise sought to exercise judicial minimalism. Its use of terms such a deference, the common good and fundamental rights and its historical origins as a case that arose during a virus outbreak was the ideal case through which judges could refract their own passive virtue was reason enough to waste no time and exercise no caution to elevate this case to the apotheosis of constitutional law.

One way in which this case has been useful is in the way it has shown the most prominent divide in our judicial system is not so much between liberals and conservatives as much as it is a divide between authoritarian jurists and libertarian jurists. Some jurists looked at this never-ending and ever-changing series of restrictions as arbitrary and capricious executive lawmaking. While other jurists welcomed all efforts from the state to do something-anything-to fight the coronavirus. The actual holding in Jacobson had virtually no impact on how judges viewed its proper interpretation and construction. Those inclined toward restraint found Jacobson to be the rubberstamp, authorizing ever manner of state action that they would have dimply found in some other irrelevant provision of law, had Jacobson not rose out the ashes of the Locherian period where such a case would have had to come from since you find little to nothing in the time before and after this era to justify similar curtailment of individual liberty and such a low valuation of the most fundamental of our liberties—that of bodily autonomy.

New Developments in the Persecution of Jenna Holm

New Developments in the Persecution of Jenna Holm

Last month the Libertarian Institute had a featured article discussing a troubling trend over the past few years of innocent bystanders being held criminally liable for instances where one police officer is killed by a fellow officer, usually as the result of negligence.

Now, an Idaho judge has dismissed a manslaughter charge against a woman after she was accused of killing a police officer who was killed by another police officer.

In May of last year, Bonneville County Sheriff’s Deputy Wyatt Maser died after his colleague, Sergeant Randy Flegel, accidentally hit him with his police cruiser. In response, the state decided someone needed to pay—and they zeroed in on Jenna Holm, the woman lying on the ground nearby.

It is uncontested that Holm did not kill Maser, having just been tased repeatedly. The officers were trying to help Holm navigate what may have been a mental health crisis, in which Holm had been wielding a machete. (Her attorneys contend she kept the machete for protection in the rural area where her car had broken down.) Though she did not harm any of the officers, Deputy Benjamin Bottcher, another cop on the scene, had to tase her for around a full minute in order to subdue her. After she fell to the ground, Maser crossed the street to handcuff her, at which point Flegel drove into the deputy as he arrived in his car.

“Holm’s unlawful conduct…therefore constitutes by statute, that Holm committed involuntary manslaughter when Deputy Maser was struck and killed while trying to detain Holm and make safe a situation Holm was actively creating,” wrote Idaho State Police Detective Mike Cox in a probable cause affidavit.

An internal police investigation found that the officers had failed to follow proper safety protocol in securing the scene on the road that evening, concluding that Maser neglected to activate his rear emergency lights and that he had stepped in front of a moving vehicle, and that Bottcher gave wrong directions, left off his emergency lights, and didn’t use his flashlight as needed. The state sought to withhold those findings from Holm’s defense, although they ultimately failed and had to release them in June.

But Judge Dane Watkins Jr. of Idaho’s Seventh Judicial District struck down the case not because of the evidence in Holm’s favor, but because the allegations were unconstitutional according to Idaho legal precedent.

The framework under which such charges can be brought is fraught as is. Known as the felony murder rule, it allows the state to prosecute people for homicides they didn’t technically commit if the crime occurred during the commission of a tangential felony. In practical terms, that’s how Ohio was able to charge a teenage girl with murder after a cop shot her boyfriend, who was committing a robbery she allegedly assisted with. Holm was charged with manslaughter during the commission of an “unlawful act.”

Trying to blame Holm for Maser’s untimely death didn’t make sense even in the context of the already-controversial doctrine. Idaho adopts what’s known as the agency theory, in which the state may only wrap up bystanders in homicide plots if the killing was carried out by one of the bystander’s accomplices. That was set in stone with State of Idaho v. Pina in which Idaho’s highest court determined Juan Carlos Pina could not be guilty of felony murder because the actual killer had no relation to Pina’s crimes that evening.

Put more plainly, Holm may have been guilty of manslaughter had she been colluding with Flegel, which was obviously not the case.

It was with that in mind that Watkins rejected the charges. “Because the state has not alleged or adduced any facts indicating Sgt. Flegel acted in the perpetration of or attempt to perpetrate an unlawful act, as part of a common plan with Holm,” he said, “probable cause does not exist to believe Holm committed involuntary manslaughter.”

Holding the state accountable is already a Herculean task, with legal doctrines like qualified immunity and absolute immunity often shielding police officers and prosecutors respectively from having to take responsibility for their misdeeds. Maser’s death that evening was a tragic accident; the internal police investigation notwithstanding, perhaps no one deserved to be punished. But the state’s attempt to prosecute a bystander—a woman the police were there to help—is a good reminder of just how far they’ll go to evade meaningful introspection.

To Keep and Bear Arms: Sometimes a Duty, Ever a Right

To Keep and Bear Arms: Sometimes a Duty, Ever a Right

On November 3, the U.S. Supreme Court will hear oral arguments in New York State Rifle & Pistol Association v. Bruen. The case will decide whether the Second Amendment’s right to “bear arms” is an actual right. Or conversely, if law-abiding adults who pass a biometric background check and safety training course can be denied a concealed carry permit simply because officials choose to only issue concealed carry permits when they feel that the applicant has a special need.

This case, along with another case Young v Hawaii, are both on the docket for the Court’s fall term. It is important that Second Amendment advocates be aware of these cases as they develop because the Biden administration continues to make unreasonable demands to the Court in how they should handle this case. The solicitor general has at various times filed motion to vacate, more recently filing an Amicus brief that essentially makes the argument that you have no Second Amendment right whatsoever outside the home for any reason. And yesterday the solicitor general filed a motion for leave with the Court, requesting the Court make the federal government a party to this case and have requested time during oral arguments for them to argue the case in-person. Unsurprisingly, the appellant is opposed to what would be an incredibly uneven distribution of time, seeing as how the respondent and the solicitor general would both be making separate oral arguments where they both intend to say pretty much the same thing; allowing a state & federal gun grabber double team to argue against the appellant.

It’s also important to keep in mind that Joe Biden has been pretty consistent when asked about plans to pack the Court; that he has not reached any final conclusion yet, but that the Court would essentially make the choice for him on two specific issues: abortion and gun rights. For him a red line (or in this case a red flag, perhaps) is any ruling that is seen as favorable to the Second Amendment community or the pro-life movement. He seems to have taken the modern myth of the “switch in time” to a whole new level. The “Switch In Time” relies on the incorrect assumption that the way President Franklin Roosevelt was able to get the Supreme Court to stop striking down his unconstitutional New Deal programs was through his threat to pack it with new justices (read: sycophants). In the 1937 case of West Coast Hotel v Parrish, the Court upheld a minimum wage law for women not based on FDR’s political pressure, but on the merits of the case.

Biden has beaten FDR at his own game for having the audacity to go beyond vague threats to very particularized demands that resemble an extortion racket.

It’s also worth noting that conservatives feel much more secure than they probably should in a belief that Donald Trump’s appointments have shifted the Court to a 6-3 split between conservatives and liberals. There are several compelling reasons to doubt that.

Generally, it’s worth noting a trend in the Court that when liberal presidents get elected they tend to appoint liberal justices and the Court shifts in a liberal direction. When conservative presidents get elected they tend to appoint conservative justices and the Court still shifts in a liberal direction.

In regards to the new Roberts Court, we do not have a 6-3 conservative court. We have what constitutional lawyer Josh Blackman has identified as a 3-3-3 Court.

Clarence Thomas, Samuel Alito, and Neil Gorsuch are on the right. John Roberts, Brett Kavanaugh, and Amy Coney Barrett are somewhere to the left of the right. And Stephen Breyer, Sonia Sotomayor, and Elena Kagan will do anything to form a majority. The chief justice may have been conservative at one point, but he has embarked on a life-long odyssey to pilot the Court to middling moderation. Justice Kavanaugh was always cut from the same cloth as Chief Justice Roberts. He played the part to get the job, but has consistently showed his true colors. And Justice Barrett is not who conservative voters thought they were getting.

Finally, as a matter of common sense, no one should ever be optimistic at the prospect of reclaiming true individual liberty by asking the federal government to limit the power of the federal government.

Whichever way this case goes, it will almost certainly become a landmark Second Amendment case, right up there with DC v Heller (2008) and McDonald v Chicago (2010).

So what is the case all about and what precisely makes it so important?

The law at issue in the case New York Rifle & Pistol Association v. Corlett is similar to gun-control measures in other states. To receive an unrestricted license to carry a concealed firearm outside the home, a person must show “proper cause”—meaning a special need for self-protection. They do not issue permits for the general purpose of lawful self-defense. Gun rights advocates often point out that even under ideal circumstances where you can call the police to protect you from an imminent threat and every second matters, the police are at least minutes away. An unarmed individual facing an imminent existential threat rarely has the several minutes of relative security needed to call the police and for them to arrive. That’s if they come at all, which they are not obligated to do. How can the state of New York expect someone facing an imminent existential threat to fill out a permit to carry application explaining the imminent threat to your life which refers to a guy who’s cornered you in an alley, put a knife to your throat, and is demanding your wallet.

Two men challenged the law after New York rejected their concealed-carry applications, and they are backed by a gun-rights advocacy group. The U.S. Court of Appeals for the Second Circuit upheld the law, prompting the challengers to appeal to the Supreme Court.

After considering the case at three conferences, the justices agreed to weigh in. They instructed the parties to brief a slightly narrower question than the challengers had asked them to decide, limiting the issue to whether the state’s denial of the individuals’ applications to carry a gun outside the home for self-defense violated the Second Amendment. (We will return to the importance of the limited question presented later). But Prima Facie, this case nonetheless has the potential to be a landmark ruling.

The announcement came just one day short of one year after the Court’s ruling in a different challenge brought by the same gun-rights group. That case involved New York City’s ban on the transport of licensed handguns outside the city. Because the city had repealed the ban before the case reached the Supreme Court, a majority of the Court agreed with the city that the challengers’ original claims were moot—that is, no longer a live controversy. In a concurring opinion, Justice Brett Kavanaugh agreed that the case should return to the lower court, but he also indicated that he shared the concern—expressed by Justice Samuel Alito in his dissenting opinion—that the lower courts “may not be properly applying” the Supreme Court’s most recent gun-rights rulings, District of Columbia v. Heller and McDonald v. City of Chicago. Therefore, Kavanaugh urged the Court to “address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari” then pending before the justices, several of which involved the right to carry a handgun outside the home for self-defense.

Shortly after issuing that decision, the Court distributed for consideration at its May 1, 2020, conference ten gun rights cases that they had put on hold while the New York City case was pending. The justices considered those cases at six consecutive conferences before finally denying review of all ten in June.

Justice Clarence Thomas dissented from the Court’s decision not to take up at least one of the ten cases. In an opinion that was joined in part by Kavanaugh, Thomas argued that the Supreme Court would likely grant review if a law required someone to show a good reason before exercising her right to free speech or to seek an abortion. However, Thomas continued, the Supreme Court had opted to “simply look[] the other way” when “faced with a petition challenging just such a restriction on citizens’ Second Amendment rights.”

There is no way to know why the justices turned down the petitions for review last year. Commentators speculated that some conservative justices may not have been confident that Chief Justice John Roberts would provide a fifth vote to expand gun rights. However, since then Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett, whose vote as a judge on the U.S. Court of Appeals for the Seventh Circuit suggests that she might take a broader approach to the Second Amendment.

In cases before the United States Supreme Court, the Court certifies questions presented to the Court on which arguments must be centered. In this case, the court has accepted the following question to resolve:

QUESTION PRESENTED:

New York prohibits its ordinary law-abiding citizens from carrying a handgun outside the home without a license, and it denies licenses to every citizen who fails to convince the state that he or she has “proper cause” to carry a firearm. In District of Columbia v. Heller, this Court held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation,” 554 U.S. 570, 592 (2008), and in McDonald v. City of Chicago, the Court held that this right “is fully applicable to the States,” 561 U.S. 742, 750 (2010). For more than a decade since then, numerous courts of appeals have squarely divided on this critical question: whether the Second Amendment allows the government to deprive ordinary law-abiding citizens of the right to possess and carry a handgun outside the home. This circuit split is open and acknowledged, and it is squarely presented by this petition, in which the Second Circuit affirmed the constitutionality of a New York regime that prohibits law-abiding individuals from carrying a handgun unless they first demonstrate some form of “proper cause” that distinguishes them from the body of “the people” protected by the Second Amendment. The time has come for this Court to resolve this critical constitutional impasse and reaffirm the citizens’ fundamental right to carry a handgun for self-defense.

The question presented is: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

GRANTED LIMITED TO THE FOLLOWING QUESTION:

Whether the State’s denial of petitioners applications for concealed carry licenses for self-defense violated the Second Amendment.

It’s looking like 2021 with be a pivotal year for Second Amendment jurisprudence. Which direction it pivots is unclear. It may be every bit as important to the individual right to carry arms outside the home for the purpose of self-defense as Heller was in determining that the Second Amendment was an individual right for the purposes of self-defense in the home. It may render the Second Amendment a dead letter once and for all. Or it’s entirely possible the Court does what it has been doing for over a decade and chooses to punt the case, assuring us that eventually they may get around to dealing with the fact that the lower courts have been intentionally misapplying the Second Amendment by citing the Court’s Heller decision and reading in provisos that don’t actually exist.

And should the court choose protection or a punt, we may see an act of vengeance on behalf of the White House for the Court’ decision that the true meaning of the Second Amendment is the one conferred by its drafters and ratifiers, as opposed to the groundless and ahistorical meaning of the amendment according to Joe Biden.

The Irrepressible Myths of Whole Women’s Health v. Jackson

The Irrepressible Myths of Whole Women’s Health v. Jackson

This month’s 5-4 Supreme Court ruling in Whole Women’s Health v. Jackson did not overrule Roe v. Wade or make any kind of decision on the scope of the right to abortion. But the Court did refuse to issue a preliminary injunction against the enforcement of S.B. 8.

There have been too many examples of both social conservative supporters of this bill and liberal detractors horribly misinterpreting and misapplying law, and using legally nonsensical arguments like getting angry with the Supreme Court because they expected the Court to do something they have no constitutional power to do. This suit was doomed to fail because of several procedural conflicts baked in as far as Whole Women’s Health v. Jackson was concerned.

But as always, whichever side comes out unsatisfied after a Supreme Court opinion that they didn’t personally like, they claim it was the Court playing politics. That doesn’t happen nearly as often as people think.

Anyone with any kind of strong political opinion and weak understanding of legal theory does this.

To start let’s get a clear summary about what this law actually does and then get a clear view of the Court’s opinion in the denial.

This bill bans abortions after the detection of a fetal heartbeat, which happens around the sixth week of pregnancy. What makes this law unique and interesting is its reliance on an obscure doctrine from the common law of torts that allows private attorneys to bring a suit in civil court, acting as what is called a private attorney general.

Private attorney general doctrine is an equitable principle that allows a party who brings a lawsuit that benefits a significant number of people or which has resulted in the enforcement of an important right affecting the public interest to recover the attorney fees. The purpose of the doctrine is to encourage suits of societal importance which private parties would not otherwise have an incentive to pursue.

The purpose of creating this cause of action by a private individual in a civil court case, rather than by the state bringing a criminal law case, was done entirely to make this bill much more difficult to challenge in court. This unique statute empowers private citizens to sue those who perform or facilitate abortions.

The civil liability scheme imposed by Texas’s S.B. 8 is likely unconstitutional. It’s inconsistent with the abortion rights recognized in Planned Parenthood v. Casey (1992) and the “undue burden” defense in the statute is likely too narrow to save it. Moreover, such state “private attorney general” laws that basically allow any person to sue over alleged illegal conduct are unfair to defendants.

It would also behoove the conservatives celebrating the passage of this bill as some clever, sneaky way to get around a Supreme Court ruling they don’t like to consider just how badly this could all go if Democrats get frustrated with trying to overturn the law and instead use it as precedent against constitutionally protected individual rights that conservatives hold as especially valuable, like the right to keep and bear arms.

President Biden confusingly muttered his disapproval of the Court’s decision, charging the conservative justices with following “procedural complexities” rather than using their supreme power to ensure justice. Biden is simply making things up. The Court has no majestic power to “ensure justice.” This is not unlike the myth that courts can “strike down laws,” as many people assume they can do.  The justices have a very limited ability to prevent specific government officials from enforcing laws against specific people. The judiciary cannot magically make laws disappear off the books. This notion that judicial review acts like an executive veto constitutes what is known as the writ-of-erasure fallacy. When the Court declares a statute unconstitutional or enjoins its enforcement this does not cancel or revoke the law. They have no authority to alter or annul the statute. Only the legislature can write, change or repeal statutes. That’s separation of powers 101. Judicial review allows a court to decline to enforce a statute and to enjoin the executive from enforcing that statute.

At least the majority in their Per Curiam Opinion demonstrated an understanding of the fallacy, which played a central role in their recent California v. Texas case.

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021)

This proposition is foundational: courts enjoin individuals, and not laws.

And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.

This appeal was only lodged against a single state court judge and a single court clerk. The District Court had not yet certified a class. Mark Lee Dickson’s brief accurately explained the dynamics:

There is no certified class of state-court judges that can be enjoined, and there is no certified class of court clerks either, because the district court did not rule on class certification before the defendants appealed its jurisdictional ruling. The plaintiffs never address this problem, and they pretend as though their requested injunction can somehow extend beyond the named defendants to every other judge and court clerk in Texas—even though none of those individuals have ever been parties to this case.

Even if the applicants received all of the relief they sought, every other judge in the state could entertain suits under S.B. 8. This case was a terrible vehicle for emergency injunctive relief. The dissenters glossed over this problem.

This is precisely what makes S.B. 8 a very clever and canny move. When the government plays no role in enforcing the law, like is the case with S.B. 8, the Court cannot block that law from being put into effect. In future cases the courts can, and almost certainly will, assess the constitutionality of S.B. 8 when a case is brought that challenges the law on constitutional grounds. But in the case of Whole Women’s Health v. Jackson it was not the law’s constitutionality that was challenged. Had that been the case I’m quite sure this would be a non-issue. The law is facially unconstitutional. But what was being sought in the case the Court just rejected was part of their shadow docket brought by parties seeking emergency injunctive relief. For the moment the Court was correct to reject this premature challenge.

That doesn’t stop many people from saying, “The Court should have blocked S.B. 8.” This is a legal non-sequitur. The appeal, as it came to the Supreme Court, involved a single judge in Tyler, Texas. Nothing the Supreme Court could have done would have “blocked” the law. Used in this or a similar context, the term “blocked” is legal gibberish that bears no relation to any conceivable power or procedure that the Court had as any kind of option in regard to handling this case. If by “blocked” they actually mean the Court should have granted the injunctive relief the case was seeking (which to remind people was a request beyond the possible legal scope of the court), that wouldn’t have blocked anything anyway. Even an injunction against Judge Jackson would have been meaningless, as other judges in Tyler could have heard the cases. I still have not seen anyone explain how the Supreme Court could have “blocked” S.B. 8 given that there was only one named judge in the case. Had the District Court used a single opinion to deny the motion to dismiss, certify the class, and grant the injunction, I think the situation would have been very different. But the judge’s piecemeal approach allowed the government defendants to seek an interlocutory appeal based on the denial of sovereign immunity.

But wait, there’s more; because of this clever flip, S.B. 8 spiked Planned Parenthood’s playbook. It is now impossible to sue the Texas Attorney General, because the attorney general cannot enforce the law. The law can only be enforced by millions of Texans. And there is no way to know in advance who would sue which abortion providers. So Planned Parenthood tried a different strategy: it sued Judge Jackson of Tyler, Texas who might one day hear a case involving S.B. 8.

This suit never made any sense. Judges do not enforce laws. They can only adjudicate specific disputes between plaintiffs and defendants. If a Texan actually sued Planned Parenthood for performing a seven-week abortion, the judge would have to dismiss that suit. After all, S.B. 8 expressly stipulates that citizens’ suits must comply with Roe v. Wade. And you don’t sue a judge to stop him from hearing a case in the first place. You let him decide and then appeal, if need be.

The Supreme Court could not, as President Biden suggested, exercise “supreme authority to ensure justice could be fairly sought.” No such power exists. In this case, the Court could only enter an order against one state judge—and that judge had no role in actually enforcing the law. The justices were absolutely correct in declining to intervene.

One should never forget that despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States is just a court. It operates like every other court does. Its judgements only bind the parties before the court, its precedents are not self-executing for non-parties.

It is important to be able to distinguish between the judgement of a court and the court’s precedent. When Smith sues Jones, there is no doubt that the decision binds Smith and Jones. This is the basic legal principle of estoppel procedure. But when Smith sues Jones, Bob cannot be bound by that case, as he was not a party to it. That would violate the basic rules of procedure and fairness. Yet when it come to the Supreme Court people flip that on its head. They say, “Well the Supreme Court has ruled and that makes it binding on everyone everywhere.”

That cannot be the case. But the Supreme Court’s precedents are controlling for all courts. So once a precedent is set, all such future cases allow others to enjoin the decision. But that additional step of converting a precedent to a judgment is very important, especially in civil rights litigation. This is why talk about “blocking the law” is nonsense.

This is also why, when you read the opinions that each of the four dissenting justices issued individually, not a single one could articulate a way they could have stopped the law had they been in the majority.

Indeed, this case should have been unanimous. Alas, it was not. Chief Justice John Roberts and the Court’s three progressives each wrote separate dissents. Chief Justice Roberts would have “grant[ed] preliminary relief to preserve the status quo ante.” But a remedy to preserve the status quo ante would be impossible in this case, which only concerned Judge Jackson. Roberts wrote that he would “preclude enforcement of S.B. 8 by” Judge Jackson. But, again, Judge Jackson cannot actually enforce the law in the first place. The chief justice, usually a stickler for procedure, was willing to invent new procedural rules to stop what he saw as an “unprecedented” law.

Justice Sonia Sotomayor made similar mistakes in her own dissent. She said the “Court should have stayed implementation of” S.B. 8.” But courts cannot block laws. Courts can only prevent specific parties from enforcing the law against specific litigants. None of the dissenters had any clue how to actually stop S.B. 8—not even Justice Elena Kagan, a brilliant former civil procedure professor. She had bupkus. Indeed, Chief Justice Roberts acknowledged that Texas “may be correct.”

Why, then, did the dissenters offer a remedy that simply could not be granted? This quartet endorsed President Biden’s mythical account of the Supreme Court. At least three of the four dissenters deeply felt that this law was substantively unjust, so there must be a way to stop it. But not every alleged wrong has a remedy in federal court. In time, actual Texans will file suit against abortion clinics, and those who fund the organizations. And the courts can then decide, at that time, if those suits are consistent with Roe v. Wade and its progeny.

So you see the problem. Let’s say you are okay with violating the Constitution by insisting the justices have an obligation to act, even if that action is facially unconstitutional because for you, preserving an individual right protected by the Constitution is too important to let the Constitution get in the way of the Constitution. You now need to sue every single judge in the state of Texas, one by one to enjoin them to the precedent that would have been created by Whole Women’s Health v Jackson.

When you look at it in that context I’m sure everyone can agree that had those in favor of injunctive relief won the case they still would be stuck with an unavoidably losing strategy.

None of that even begins to address the fact that there were numerous procedural reasons why the Court could not have ruled on the case as presented. And to reiterate, there will be future cases brought to assess the Constitutionality of S.B. 8. For now rejecting this premature challenge was the right call.

Blue on Blue Violence: How Private Citizens Are Culpable When Cops Kill Each Other

Blue on Blue Violence: How Private Citizens Are Culpable When Cops Kill Each Other

On an early morning in May 2020, Bonneville County Sheriff’s Deputy Wyatt Maser lost his life while responding to a call in Idaho Falls, Idaho. He and another officer arrived to assist a motorist, Jenna Holm, after she was in a single-car crash on a rural stretch of road. They arrived to find Holm in distress. While attempting to bring her into custody, another officer driving at high speeds arrived and hit Deputy Maser with his patrol vehicle. Maser died at the scene. Holm was charged with manslaughter in connection with his death.

Tracking Police-on-Police Violence

Jenna Holm is not the only person to face charges as a result of one officer killing another. Here are other stories of police-on-police violence in the United States.

  • Officer William Wilkins was an Oakland narcotics officer shot and killed by two uniformed fellow police officers in February 2001.
  • In May 2009, New York City Police Detective Omar Edwards was chasing Miguel Goitia, a person suspected of breaking into his car. Another New York City police officer, Andrew Dunton, saw Edwards running with a gun, misread the situation and shot Edwards.
  • Geoffrey Breitkopf of the Nassau County Police was killed March 2011 by another police officer after being mistaken for a suspect during an incident in Long Island, New York. Breitkopf and many officers were gathered to assist with a person reportedly brandishing a knife in a Nassau County neighborhood.
  • Two border patrol agents split up to track a suspected drug smuggler(s) in October 2012 near Bisbee, Arizona. They never found any suspects, but they ended up in a shootout against each other—each unaware the other was a fellow officer. Nicholas Ivie was killed in the exchange.
  • Detective Jacai Colson was killed March 2016 in Landover, Maryland by fellow officer Taylor Krauss who mistook him for an active shooter.
  • While investigating a robbery in progress in Queens, New York in February 2019, Detective Brian Simonsen was shot by fellow officers. The officers had flanked the entrance to a T-Mobile store that was being robbed and were inadvertently positioned to shoot at each other. Within 11 seconds, 42 shots were fired by 7 different officers. The two robbery suspects, Christopher Ransom and Jagger Freeman, both survived and were charged with second-degree murder for the death of Simonsen.
  • In September 2019, a New York City police officer Brian Mulkeen lost his life to friendly fire. In what was described as a “chaotic situation,” Officer Mulkeen and six other New York City police officers chased Antonio Williams for reasons not disclosed to the public. In approximately 10 seconds, 15 shots were fired by police, killing Antonio Williams and Officer Mulkeen.
  • Deputy Constable Caleb Rule was shot by Deputy Chadwick McRae while investigating a possible home burglary in Missouri City, Texas in May 2020. Both officers were independently investigating a report of a suspicious person, with Officer Rule arriving first. Deputy McRae arrived second, and observing an open door, shot into the house, killing Rule.
  • Alexander, Arkansas police officer Scott Hutton was killed by fellow police officer Calvin “Nick” Salyers after going to Salyers’ house in June, 2020, while both were off duty.
  • Officer Jonathan Shoop was shot by fellow officer Mustafa Kumcur, who was located in the same car as Shoop during a traffic stop in Bothell, Washington in July, 2020. Henry Eugene Washington is alleged to have initiated a shootout after being pulled over for a traffic infraction. Washington was charged with aggravated first degree murder for the death of Officer Shoop.

In more than half of these cases in which police were killed by police, a suspect was either charged and/or convicted (Maser, Colson, Simonsen, Shoop) or blamed (Mulkeen).

In so many of these cases, the defining features are chaos at the scene and poor communication between the police officers: disadvantageous arrangement of law enforcement in a scene without clarity on everyone’s part, poor communication regarding the location of law enforcement officers, lack of communication regarding who is a law enforcement officer and who is in charge, and so on. Most of these police deaths could have been prevented by the police themselves through improved communication and tactics and appropriate use of force.

Police-on-police violent encounters are commonplace across sheriff’s and police departments in the United States but there are no known efforts to track them locally or nationally. In 2010, David Paterson, the then-Governor of New York, convened a task force to examine police-on-police accidental shootings. The task force’s final report describes over 300 incidents of non-fatal police-on-police violent incidents across the United States, observing that while officer-on-officer violent incidents are common, how officers and agencies handle these incidents are a patchwork of policies.

“Because the United States—uniquely in the world—has literally thousands of separate police departments with no government agency able to set standards for them all, the variety of policies and protocols is virtually endless, with enormous variation in how thoroughly departments train for such encounters, if they train at all.”- New York Task Force on Police-On-Police Shootings

The task force found that most shootings were accidental slayings of non-uniformed officers that were mistaken for individuals committing crimes. Their findings indicate that black officers were more likely to be shot and killed under these circumstances, as was the case for Jacai Colson, William Wilkins, and Omar Edwards.

Two years after Omar Edward’s death, New York City Police instituted more training for interactions between on-duty and off-duty officers. The effectiveness of these trainings in preventing police-on-police violence is not known.

Wyatt Maser and the Case of Jenna Holm

When Jenna Holm was involved in a one-car crash at approximately 5 a.m. May 18, 2020 on a rural road near Idaho Falls, Idaho, a passing motorist saw her car on its side, pulled over and called 911. When the Sheriff’s deputies arrived, Holm was in the middle of the road, holding a machete to her chin. Bonneville Sheriff’s Deputy Benjamin Bottcher arrived first, and was soon followed by Deputy Wyatt Maser. They spoke with Holm, saying they were there to help and asking her to put down the machete. Bottcher had interacted with Holm several days prior at the Idaho Falls Crisis Center. Holm was screaming, clearly in distress and possibly experiencing a mental health crisis. After several requests, she did put down the machete. Twenty minutes after their arrival, Deputy Bottcher tased her. When this did not initially subdue her, Bottcher continued to tase her for several more seconds.

Eventually, Holm dropped to the ground due to the ongoing tasing. Deputy Maser stepped into the roadway to bring Holm into custody. Without warning, lights from Sergeant Randy Flegel’s patrol car illuminated the roadway and he hit Maser with his car. Deputy Maser died at the scene. According to the evidence presented in court, Flegel was driving over 90 miles per hour into bright lights as he approached the scene, and he slowed to 53 miles per hour when he struck Maser. Holm was taken into custody, and a few days later, the Bonneville County prosecutor charged her with manslaughter for the death of Wyatt Maser.

Standing In Law

Jenna Holm is charged with “involuntary manslaughter,” which under Idaho Code §18-4006 is “the unlawful killing of a human being…in the perpetration of or attempt to perpetrate any unlawful act.”

At her probable cause hearing, the prosecutor stated: “By continuing to be a danger to others and not complying with law enforcement orders, she produced the death of Deputy Wyatt Maser.” Her defense attorney indicated the intent was not to threaten or endangers others or disobey orders. She was in emotional distress at the time, and she did not feel safe since she was on a dark, rural road with limited cell phone service. In addition, it was dark and very noisy from high winds, making it difficult for everyone present to ascertain what was going on.

The Bonneville County prosecutor chose not to charge Sergeant Randy Flegel, the person driving the vehicle that hit and killed Deputy Maser. It is common for law enforcement and prosecuting attorneys to work closely together, raising questions about the suitability of a prosecutor’s office deciding whether or not to charge an officer within their jurisdiction. Indeed, the Bonneville County Sheriff’s Office referred to the Bonneville County Prosecutor’s Office as “our partner” in a Facebook post from April 15, 2021.

The defense has stated that Sergeant Flegel acted negligently by approaching a police encounter taking place in a road at such high speeds, especially since it was dark. Most recently, the defense filed a motion to dismiss Holm’s manslaughter charge, arguing that she was not committing an unlawful act when Maser was killed. Holm was on the ground and incapacitated when Flegel struck Maser.

Recently, the Bonneville County Sheriff’s Office completed an internal investigation into the incident. In that report, they identify several factors that may have led to Wyatt Maser’s death: no emergency red and blue emergency lights were activated by law enforcement (only scene lights were used), Deputy Bottcher provided incorrect directions and locations when he relayed the situation to the dispatch, and a witness present had bright vehicular lights pointing into oncoming traffic. The report recommends additional training for new recruits focused on roadside safety and supervisory oversight on compliance.

The prosecution originally provided only a summary of those findings to Holm’s defense team. They did not release the full internal investigation despite obligations to follow the Brady Rule, which holds that prosecutors must turn over potentially “exculpatory evidence” (that supports the defendant and/or absolves them of the crime) to the defense. In a court hearing, the trial judge ruled that the prosecutor must turn over the entire report from the internal investigation to the defense team.

Jenna Holm is facing a maximum of 10 years in prison and $15,000 in fines for manslaughter, and a maximum of 5 years in prison and $5,000 in fines for aggravated assault.

An Emerging Pattern

What happened to Jenna Holm is shocking. That interaction between her and the Bonneville County Sheriff’s office could easily have ended without the senseless tragedy if not for the mistakes of the sheriff’s deputies. As I researched this piece, it was surprising to discover a pattern of pinning blame on civilians for the mistakes of law enforcement. At some point after 2009, a blueprint emerged wherein the civilian(s) originally caught up in the police encounter were blamed for police harm regardless of the circumstances or if the original police encounter was ever justified. In New York City, Miguel Goitia was not held criminally liable for the death of Omar Edwards in 2009. But after that, the New York City prosecutorial policies shifted. Antonio Williams was blamed for the death of Brian Mulkeen, although both died in the same incident that the NYPD initiated despite no criminal wrongdoing by Wiliams. Christopher Ransom and Jagger Freeman are being charged with murder for the death of Brian Simonsen. A similar pattern is repeated in the cases of Jacai Colson, Jonathon Shoop, and Wyatt Maser. Police officers have been held accountable for the death of another officer when there is not another person involved in the encounter, like in the cases of Scott Hutton and Caleb Rule, but this is uncommon.

While these incidents are rare, the pattern is chilling. Could any one of us end up caught up a police murder charge due to negligence and carelessness by other police officers? Holm’s manslaughter charge started as a one-car traffic accident. She likely needed a tow truck and a mental health professional. Instead, she was tased and is now facing charges for actions that occurred while she was incapacitated. This case also raises questions about the overall integrity of the Bonneville County Sheriff’s Office. Sheriff’s deputies erred in their actions that day resulting in a tragic outcome, yet the Sheriff’s Office has not publicly acknowledged this to the community it serves.

These cases not only upend the lives of civilians, they fail to bring true justice and accountability for the surviving friends and family of slain officers. The families of William Wilkins, Jacai Colson, and Geoffrey Breitkopf were clearly not satisfied with the response from law enforcement and/or the criminal justice system and hence sought redress in civil courts. Notably, the case of Geoffrey Breikopf is different. The civilian Anthony DiGeronimo was not blamed for Geoffrey Breitkopf’s death, but the Nassau prosecutor also did not charge retired officer John Cafarella, despite the evidence that his actions created chaos and led directly to Breitkopf’s death.

It is important that law enforcement publicly take responsibility for their mistakes, particularly when those mistakes lead to tragedies, so that existing harm can be addressed and in the future, prevented. Clearly, errors were made by the Bonneville County Sheriff’s officers during the events of May 18, 2020. While the recommendations from the internal investigation—training on roadside safety for new recruits—are a good step, the continued attempt to prosecute Jenna Holm undermines those reforms; the message is that roadside safety protocols sort of matter, unless there is a ‘perp’ to blame. Additionally, this recommended training may not prevent another incident like Maser’s death if it is not required for current officers.

As written in the Idaho State Code § 31-2202, county sheriff’s offices have a deep responsibility to the communities they serve. Their ability to fulfill this relies on public trust, and respect and transparency are two core ingredients to maintain that trust. I hope that the Bonneville County prosecutor will take this seriously and reconsider what is to be gained by prosecuting Jenna Holm for Wyatt Maser’s death.

Libertarian Legal Scholar Sacrifices First Principles On Mandatory Vaccination

Libertarian Legal Scholar Sacrifices First Principles On Mandatory Vaccination

Recently, Ilya Somin appeared on MSNBC to explain why libertarians support mandatory vaccination.

Ilya is a George Mason University law professor, Cato Institute adjunct scholar and constitutional law attorney. MSNBC invited him to appear on their network to bolster their claim that Republicans are terrible people who oppose mandatory vaccination because they are selfish and their decision to indulge in their selfishness at the cost of thousands of lives lost is due to a conservative callousness towards human life. This is so obvious, in fact, even libertarians support vaccine mandates.

I personally know Ilya, who is widely recognized by legal scholars as one of the best constitutional law and property law scholars in the nation. This article does not question his legal prowess or libertarian credentials, but only his judgement in “presenting the libertarian position” when he is intelligent enough to know the vast majority of libertarians vehemently reject what he’s advocating. And to do it on a network that consistently holds libertarians in contempt as government hating nut jobs is bizarre. What good could it possibly do to lend credibility as either a legal scholar or a libertarian to shill for progressives whose position is essentially “See, even the people we think are crazier and more dangerously anti-government than Republicans think Republicans are going too far”?

Ilya doesn’t quite accept the interviewer’s claim that the mandate is not a fundamental infringement of liberty. Instead Ilya says it is an infringement on liberty but it is a smaller infringement than other options like lockdowns. There is a bigger payoff from getting vaccinated than with lockdowns.

Even if someone wants to argue that it’s legally acceptable to force medical treatment on people against their will, citing the utilitarian argument Ilya made about “little infringement, big payoff” would still make you wrong. Utilitarianism in positive law is a fine, debatable position. But consequentialism cannot be reconciled with libertarianism’s deontological first principles. Sure, getting vaccinated may be les authoritarian than being locked in your home. But self-ownership is self-ownership. Either I own myself and have exclusive say in bodily integrity, or we are all government property and individual liberty is not a right, but a conditional state of temporary non-coercion.

Now, “small infringement, big payoff” is a good argument if one chooses to be vaccinated, as long as it’s done without coercion (even including the ridiculous diea to offer $100 to get the shot). Yes, it’s a very poor use of money we can’t afford to spend; but that’s true of 99 cents of every dollar government spends. With the new infrastructure bill Congress just passed we have already spent $5 trillion dollars this year. The National debt is nearing $29 trillion and unfunded liabilities might well be as high as $150-200 trillion. No reasonable person can conclude there is any situation in which the government will be willing to tolerate the kinds of spending cuts it would take to balance a budget. There is no way the American people will ever accept the tough medicine of deflation required that would get us back on a sound economic footing. To think the economy is going any way except bust is just naïve.

People might as well embrace the tough logic in Milton Friedman’s timeless advice that the only cure for high inflation is high living. Roll the printing press and give everyone $100 of what is basically monopoly bucks.

Ilya follows this up with the almost unbelievable comment that, “Sure it’s a small infringement, but you get the jab and in a day or two life goes back to normal for you.”

Bullshit.

For him to ignore the goal-post shifting that has been constantly happening since the pandemic broke out in early 2020 is just absurd. Does everyone remember “Just a two week shutdown to flatten the curve?” Then it was “We just have to reach herd immunity,” (a concept that has been entirely misunderstood by politicians and the corporate press, as this article discusses later) after several more months it was “Well just wait until we have a vaccine. As soon as we have that everything will go back to normal.” Then we needed to get as many people vaccinated as possible to open up.

We can’t just make it readily available to everyone who wishes to be vaccinated and let those who don’t get it take responsibility for the own health choices as we do with every other medical decision.

Recently the promise was, “Once a person is vaccinated it’s truly back to business as usual for that person.” Until it wasn’t. Initially the CDC said once your vaccinated you can stop wearing a mask everywhere, now they have backpedaled on that as well.

No one who has been paying any attention to anything over the last year and a half should be so foolish as to say, “Once you are vaccinated, after a day or two everything in life goes back to normal.” It’s already been proven that’s a lie. And anyone who thinks “Well once the majority of the population are vaccinated, then everything will surely go back to normal,” would do well to think about how every such similar promise has not only been broken; but every time we did what they told us to do to “earn” our freedom back, not only do they not give it back, they pile on more restrictions. That has been a consistent fact with every single promise of “back to normalcy” our leaders have made.

Then the “journalist” lets the mask drop momentarily and makes it clear just how little respect he has for libertarians. He says that because Ilya is actually educated, he is a scholar who has done the research, looked at the data, done the heavy intellectual lifting and has reached the scholarly conclusion that vaccine mandates are not an infringement of liberty, that must mean all of those other people opposing forced vaccination are just uneducated. They throw around buzzwords like “freedom” and “liberty” because they don’t understand what they are talking about. They don’t understand that “Their right to liberty ends where mine begins,” and their driven by selfishness, not real libertarianism.

Never mind that a quip like “Their liberty ends where mine begins” has no possible bearing on the conversation and is itself a meaningless buzzword of a phrase. Either that or he really thinks his liberty begins with using a guy with a gun to force me to submit to receiving a medical treatment I do not consent to.

In response Ilya gives the only reasonable answer of the entire interview. He points out that the people being condescendingly referred to such as Rand Paul or Ted Cruz are not libertarians, nor do they claim to be libertarians. They will tell you they are Republicans—and that is what they are.

But to the larger point, this is something people of all political ideologies do. Republicans, Democrats, even socialists will resort to talking about freedom and liberty whenever it suits their ends to do so. This doesn’t make them pretend libertarians, t just makes them Americans.

Let’s consider what might have been a more philosophically sound answer to that question. To start, there are many honest differences of opinion people can come to while both beginning with a genuine set of libertarian first principles. But this interview fails to provide any such answers that two libertarians can both respectfully disagree about. There is no such point of respectful disagreement over the claimed ability to violate the bodily integrity of another person for any reason.

It’s hard to think of a more fundamental right than the right to determine what happens to one’s own body. Forcing someone to undergo medical treatment against their will violates this most basic of rights—the right to be free from physical assault. Somehow some libertarians have jumped on the mandatory vaccination bandwagon, arguing that one person not taking every possible precaution against contracting a disease constitutes an assault against another. But this line of thinking requires some very tortured logic.

To begin with, nobody has a “right” to a germ-free environment outside of their own property (and good luck establishing one there). Proponents of vaccine mandates assert this “right” as if it is a long-standing social or legal norm, but it is not. Human beings have been living among each other for millennia, and there has never been a widely asserted right to freedom from any and all pathogens at others’ expense.

There has, historically, been a widely held and asserted expectation of quarantine in the case of exceptionally dangerous illnesses. However, this is not at all what the proponents of mandated vaccines are calling for. Quarantine is simply the demand that those who are already infected with a disease remain isolated in their homes or elsewhere until they are no longer able to infect others.

This is profoundly different from what the pro-mandate crowd demands: that those who are not infected undergo a medical procedure to minimize their chances of becoming infected. This is a much more intrusive demand and a potentially dangerous one.

Furthermore, SARS—the scariest thing the mandate pushers can come up with—hardly qualifies as an exceptionally dangerous disease in the developed world. Long before the vaccine was available, the mortality rate had fallen to around 1 in 10,000 cases.

So what has changed in the last few years? How is it that all of a sudden SARS has gone from a disease not even worthy of mandatory quarantine for the infected to one that has generated near-mass hysteria and requires a far more intrusive, forced medical intervention against those who are not infected?

In 2016, then-Libertarian presidential nominee Gary Johnson announced that he had reversed his position on vaccine mandates and now supported them. The reason? Someone told him about herd immunity:

…I’ve come to find out that without mandatory vaccines, the vaccines that would in fact be issued would not be effective. So…it’s dependent that you have mandatory vaccines so that every child is immune. Otherwise, not all children will be immune even though they receive a vaccine.

Had Johnson looked just a little more deeply, he would have learned that the theory of vaccine-induced herd immunity is not as solid as its proponents would have us believe. The idea was first put forward by A.W. Hedrich in 1933, based on his observation that measles outbreaks were suppressed when 68% of children had contracted the measles virus. This observation had nothing to do with vaccination, as the measles vaccine had not even been developed yet.

This is an important distinction for a few reasons. Perhaps most importantly, while the immunity conferred by contracting measles lasts a lifetime, that conferred by vaccination does not. What this means is that a 90% vaccination rate does not equate to 90% of the population having immunity. It was a relatively recent discovery that that most of these vaccines lost their effectiveness two to ten years after being given. What this means is that at least half the population, that is the Baby Boomers, have had no vaccine-induced immunity against any of these diseases for which they had been vaccinated very early in life. In essence, at least 50% or more of the population was unprotected for decades.

If we listen to present-day wisdom, we are all at risk of resurgent massive epidemics should the vaccination rate fall below 95%. Yet, we have all lived for at least 30 to 40 years with 50% or less of the population having vaccine protection. That is, herd immunity has not existed in this country for many decades and no resurgent epidemics have occurred. Vaccine-induced herd immunity is a lie used to frighten doctors, public-health officials, other medical personnel, and the public into accepting vaccinations.

The larger point, though, is that even if the idea of vaccine-induced herd immunity did hold up to scrutiny, it would at best be a positive externality—not something that anyone has the right to demand from others at gunpoint.

But what about those who cannot be vaccinated?

Others have written more comprehensively on the fallacy of using medically fragile people as an excuse for forcing everyone to be vaccinated. So I’ll just say this: nobody has an obligation to vaccinate themselves or their children in order to protect the most medically vulnerable among us.

I doubt that those who promote this line of thinking have really thought through the implications of what they are asking for: requiring everyone to alter their lives and actions in order to accommodate the most medically fragile, at all times and in all spaces. What they are demanding has implications far beyond vaccines.

But why should you and I and the vast majority of adults in the U.S. be exempt from the requirement to be completely up to date on all of the vaccines the CDC and its pharmaceutical industry cronies have decided we should have? Are we not also committing aggression every day we go out in public, exposing others to diseases we do not yet have but might possibly contract? Where are the demands for a booster shot every few years for all American for things such as the MMR vaccine (Measles, Mumps, and Rubella)? Am I not aggressing against my neighbor by failing to get an MMR booster since I first got it as a child?

Of course, if disease transmission is really what the proponents of vaccine mandates are worried about, then they should also demand that those recently vaccinated with live-virus vaccines not be allowed in schools or any public spaces. And if they aren’t demanding this, then one has to wonder whether the transmission of disease really is their primary concern.

The bottom line, though, has nothing to do with the science behind vaccines, nor with herd immunity, nor competing claims about vaccine safety and vaccine harm. Nor does it have to do with how serious diseases like measles are or are not. It is simply this: you do not have the right to force a medical procedure on another person.

You are free to do whatever you wish with what is yours—and other people are not yours. You do not own them, and you do not get to make decisions over their bodies and their lives. You may exclude them from your property if you wish, but you may not force them to undergo medical (or non-medical) procedures against their will. You don’t even have to be a libertarian to understand this. The right to bodily integrity, to be free from assault, is the most fundamental of all human rights. If it is not protected, then no other rights even matter.

Are Central Banks ‘Necessary & Proper’?

Are Central Banks ‘Necessary & Proper’?

Enumerated Constitutional Powers and the First Bank of the United States

Article I, Section I of our Constitution states that “All legislative powers herein granted shall be vested in a Congress of the United States.” In other words, if a legislative power is not enumerated somewhere in the Constitution, the Congress does not have that power.

Most of Congress’ enumerated powers can be found in Article I Section 8 which lists seventeen separate clauses. The power to incorporate a bank cannot be found in the first sixteen clauses of Article I, Section 8. Only Clause 17, the Necessary and Proper Clause, could possibly empower Congress to incorporate a bank.

In the 1790s members of Congress and officers in the executive branch debated about an important Constitutional question: is it necessary and proper for Congress to charter a bank in order to execute its powers to collect taxes, borrow money and regulate commerce?

Unlike the Federal Reserve Bank that exists today, private investors held stock in the first national bank. Was it proper to grant monopolies to such favored individuals? Opponents of the bank feared creating a privileged, monied aristocracy of the type that existed in Europe. These populist concerns created a white-hot political debate, and soon the controversy about the bank’s constitutionality focused on Congress’ power to grant such a monopoly.

Representative James Madison delivered an important speech before Congress. He argued that the power to incorporate a bank was not incidental to any of the enumerated powers. Therefore the power to charter the bank was a “great and important power” that needed to be enumerated in the text of Article I.

In addition, Madison contended it was not necessary to incorporate a bank in order to collect taxes, borrow money, or regulate commerce. He concluded that Congress lacked the power to incorporate the bank.

Despite his dissent, Congress approved the bank, and President Washington asked members of his cabinet for their opinions on it’s constitutionality.

Secretary of State Thomas Jefferson took an even more stringent view of “necessary” than did Madison. Jefferson contended that, “When the Constitution restrained Congress to the necessary means of executing its powers this was limited to those whose means without which the grant of power would be nugatory…Because its goals can be accomplished in other ways, it was not necessary to charter a bank.”

Alexander Hamilton, the Treasury secretary who first proposed the idea of a national bank, strongly rejected Jefferson’s strict reading of “necessary.” Instead he defined necessary as “needful, requisite, incidental, useful or conducive.” In other words, if it is useful for Congress to charter a bank in order to collect taxes or borrow money, then Congress has the power to do so.

But while Hamilton rejected any test of constitutionality that rested on the degree in which its measure is necessary, he did not go so far as to say that Congress had the discretion to adopt any means that in its sole judgement would be convenient. Instead Hamilton offered the following test:

The relation between the measure and the end; between the nature of the means employed toward the execution of a power, and the object of that power must be the criterion of Constitutionality.

Today we would call this “means” and “scrutiny.”

President Washington, split in agreement with Hamilton and Jefferson’s interpretations, deferred to Congress. In 1791 he signed the bill into law, chartering the first bank of the United States

would either agree with Hamilton’s constitutional interpretation or he agreed with Jefferson that, because the decision was a close one, he should defer to Congress; because in 1791 he signed the bill onto law chartering the First Bank of the United States which would remain in business for two decades.

The Second Bank of the United States

After its lapse in 1811, Congress chartered a Second Bank of the United States five years later.

That the bill was signed into law by President James Madison has given rise to the question of whether he had changed his mind about the meaning of the Necessary and Proper Clause from what he originally articulated as a congressman. In private correspondence Madison defended the consistency of his approach by contending it was proper of him to defer to the judgement of several Congresses on the question of whether the bank was truly necessary to execute its powers, especially given what he said was the bank’s almost necessity.

But the bank soon became very unpopular.

In 1818 the Maryland General Assembly imposed a tax on its branch of the Bank of the United States in Baltimore. The bank’s cashier, James William McCulloch, refused to pay the tax. Maryland sued McCulloch to recover the money. The Maryland Court of Appeals ruled for the state. McCulloch then appealed the case to the Supreme Court, arguing that a state cannot tax a federal institution. However, before the Court could decide if the state tax was constitutional, they had to first decide if Congress had the power to charter the federal bank in the first place.

The debate that had originated a quarter century earlier between Jefferson, Madison, and Hamilton would now be resolved by the Supreme Court in McCulloch v. Maryland. Chief Justice Marshall, writing for the majority, rejected Maryland’s very narrow reading of “necessary.” Though Marshall did not cite Hamilton, the Chief Justice copied several portions of the Treasury Secretary’s opinion on the bank almost verbatim.

The Court’s Opinion

Marshall used Hamilton’s four precise words (“needful, requisite, incidental, useful”) and added a fifth (“convenient”) at several junctures in his opinion, a term that Hamilton did not use as a synonym for necessary. That is, Marshall could be read as saying that Congress could do whatever is convenient in order to execute its other enumerated powers,

Indeed, Marshall described the creation of the bank as a “convenient, useful and essential instrument in the prosecution of fiscal operations and an appropriate mode of executing the powers of government.”

He rejected the notion that it must be an absolute, physical necessity. Marshall put forward the following test, which to this day is relied on by the Supreme Court to determine the scope of Congress’s implied powers:

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

Arguably the criterion of means, which are plainly adopted to the ends, includes the sorts of means and scrutiny that had been advocated by Hamilton, but this is not entirely clear.

The bottom line is the Court in McCulloch held that the Necessary and Proper Clause gave Congress a power sufficient to incorporate the bank. As a result, Maryland cannot tax the federal bank because, “The power to tax involves the power to destroy.” Marshall rejected the objection that the Constitution did not specify powers to create a bank on the grounds that such specificity would “partake of the prolixity of the legal code.”

Instead he declared, “We must never forget that it is a Constitution we are expounding,” adding, “Our Constitution is intended to endure for ages to come, and consequently, to be adapted to the varied crises of human affairs.”

In other words, to avoid soon growing outdated, the Constitution speaks in more general terms. Marshall’s opinion in McCulloch became so controversial that he defended it in the editorial pages of two Virginia newspapers in a series of pseudonymous columns. To rebut the charge that the Court had read the Necessary and Proper Clause to authorize “unlimited power of Congress to adopt any means whatsoever,” Marshall highlighted a portion of his opinion that does not always receive attention.

“[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government,” then the Court would have to invalidate the law.

Thirteen years later in 1832, President Andrew Jackson vetoed a renewal of the Second National Bank. Unlike Marshall, Jackson found the bank was not necessary to the execution of Congress’ enumerated powers and was therefore unconstitutional.

Necessary and Proper Clause In Its Original Public Meaning

The Congress shall have Power To…make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Article I, § 8, Clause 18)

The delegates to the 1787 Constitutional Convention declared by resolution that Congress should possess power to legislate “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.” It was left to the Committee of Detail—a distinguished body consisting of four prominent lawyers (Oliver Ellsworth, Edmund Randolph, John Rutledge, and James Wilson) along with a prominent businessman (Nathaniel Gorham)— to translate that resolution into concrete form. At the Constitutional Convention, the Committee of Detail took the Convention’s resolutions on national legislative authority and particularized them into a series of enumerated congressional powers. This formalized the principle of enumerated powers, under which federal law can govern only as to matters within the terms of some power-granting clause of the Constitution. By including the Necessary and Proper Clause at the conclusion of Article I, Section 8, the Framers set the criteria for laws that, even if they are not within the terms of other grants, serve to make other federal powers effective.

Although modern scholars often express bafflement at the Necessary and Proper Clause, the meaning and purpose of the clause would actually have been clear to an eighteenth-century citizen. The enumeration of congressional powers in Article I, Section 8 is similar to the enumeration of powers that one would find in an eighteenth-century private agency instrument or corporate charter. That is not surprising, as the Founders viewed the Constitution as, in the words of James Iredell, “a great power of attorney,” in which the principals (“We the People”) grant power to official agents (the government). Eighteenth-century agency law understood that grants of power to agents generally carried implied powers in their wake: the enumerated, or principal, granted powers were presumptively accompanied by implied, or incidental, powers that were needed to effectuate the principal powers. As William Blackstone wrote, “[a] subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant.” Agency instruments accordingly often referred to “necessary,” “proper,” or (most restrictively) “necessary and proper” incidental powers of agents. A Committee of Detail composed of lawyers and a businessman would have written, and a public accustomed to serving as or employing agents in a wide range of everyday affairs would have recognized, the Necessary and Proper Clause as a provision clarifying the scope of incidental powers accompanying the grants of enumerated (or principal) congressional powers.

Three Great Purposes

So understood, the Framers crafted the Necessary and Proper Clause to serve three great purposes. The first was to facilitate organization of the government, such as empowering Congress to organize the judicial department and to create executive offices. The second was to help effectuate the other enumerated powers of Congress. The third, and most general, was to define the limits of these implied or incidental powers.

As to the first purpose, the Constitution could not prescribe all points of government organization, so Detail Committee member Edmund Randolph proposed empowering Congress to “organize the government.” James Wilson proposed the “necessary and proper” clause as a substitute, authorizing laws “for carrying into Execution” the “other” federal powers. The committee, and then the Convention, approved. The organizational function of this clause was recognized from the outset. Among Congress’ first acts was establishing executive departments and staffs, determining the number of justices on the Supreme Court, and allocating the judicial power among federal courts. The Supreme Court has acknowledged the Necessary and Proper Clause as the source of Congress’ power to legislate about judicial process and procedure.

As to the second and more significant purpose, the clause also supports laws for carrying into execution “the foregoing Powers,” that is, those specified for the legislature itself in Article I, Section 8. It thus enhances the other powers given to Congress. During the ratification debates, opponents dubbed it the “sweeping clause” and the “general clause,” arguing that it subverted the principle of enumerated powers by giving sweeping general legislative competence to Congress. The Anti-Federalist Brutus, for example, said it “leaves the national legislature at liberty, to do every thing, which in their judgment is best.” Defenders of the Constitution strongly disagreed. At Pennsylvania’s ratification convention, James Wilson, the author of the clause, explained that the words “necessary and proper” are “limited and defined by the following, ‘for carrying into execution the foregoing powers.’ It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” It authorizes what is “necessary to render effectual the particular powers that are granted.” Congress thus can make laws about something otherwise outside the enumerated powers, insofar as those laws are “necessary and proper” to effectuate federal policy for something within an enumerated power.

The third purpose has the broadest implications for constitutional law. The Articles of Confederation expressly forbade any inference of incidental powers by specifying that “[e]ach state retains . . . every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” The Constitution contains no such clause, and it is therefore appropriate to find some measure of implied congressional powers. Had the Constitution been silent about implied powers, the ordinary back-ground rules of agency law would have mandated inferring some measure of such powers to effectuate the enumerated powers, but would have left uncertainty about how broadly or narrowly to construe the implied powers. By selecting a relatively restrictive phrase—“necessary and proper,” in the conjunctive—to describe the range of implied congressional powers, the Constitution eliminated that uncertainty by limiting implied powers to those that bear a close relationship to the principal powers.

Accordingly, every law enacted under the Necessary and Proper Clause must meet four requirements: (1) it must be incidental to a principal power; (2) it must be “for carrying into Execution” a principal power; (3) it must be “necessary” for that purpose; and (4) it must be “proper” for that purpose. And, because the clause provides that all such laws “shall be” necessary and proper for executing federal powers, rather than prescribing that such laws “shall be deemed by Congress” to be necessary and proper, these inquiries are all objective, contrary to Brutus’s suggestion of unreviewable congressional discretion.

The Role of the Necessary and Proper Clause in McCulloch

In McCulloch v. Maryland, Chief Justice John Marshall confirmed the original understanding of the clause. He noted that other grants of power by themselves “according to the dictates of reason” would “imply” a “means of execution.” He went on, however, to declare that the Constitution “has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the Government to general reasoning.” For the Chief Justice, the Necessary and Proper Clause makes express a power that otherwise would only have been implied and thus might have been subject to cavil. By implanting the clause among the powers of Congress, the Framers confirmed that Congress may act to make the constitutional plan effective. In his parsing of the words of the clause, he concluded that the Necessary and Proper Clause authorizes laws enacted as means “really calculated to effect any of the objects entrusted to the government.” Arguments for laws that lack this crucial means-to-end characteristic find no support in Marshall’s opinion or in the Necessary and Proper Clause.

While modern case law does not fully reflect the original meaning of the Necessary and Proper Clause, it has moved significantly towards conformance with original meaning in recent years, at least with respect to several of the clause’s requirements. Most notably, the modern Supreme Court has recognized, after a long period of neglect, the requirement that laws under the Necessary and Proper Clause be incidental to a principal power, as Marshall emphasized in McCulloch. The McCulloch case concerned in large measure whether the Necessary and Proper Clause authorized Congress to incorporate a national bank, given that neither the power to create a corporation nor the power to create a bank is among the principal (enumerated) powers of Congress. The Chief Justice devoted the bulk of his opinion to explaining why the power to incorporate a bank was incidental, that is, not as great as a principal power. He said that incorporation was “not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers,” but rather “must be considered as a means not less usual, not of higher dignity.” If a power is not incidental—if it is of the same “dignity” or (as founding-era agency lawyers would say) as “worthy” as the principal enumerated powers—then it cannot be implied under the Necessary and Proper Clause, no matter how convenient, useful, or even indispensable it might be to effectuation of a principal power.

This basic idea played a key role nearly two centuries later in Chief Justice John Roberts’ decisive opinion for the Court in National Federation of Independent Business v. Sebelius (2012), in which the Court upheld the Patient Protection and Affordable Care Act (PPACA) provision known as the “individual mandate” to purchase government-approved health insurance under the taxing power but found the mandate unsupportable by either the Commerce Clause or the Necessary and Proper Clause. In explaining why the mandate was not authorized by the Necessary and Proper Clause, Chief Justice Roberts wrote, extensively quoting McCulloch, that the clause “vests Congress with authority to enact provisions ‘incidental to the [enumerated] power’…Although the Clause gives Congress authority to ‘legislate on that vast mass of incidental powers which must be involved in the constitution,’ it does not license the exercise of any ‘great substantive and independent power[s]’ beyond those specifically enumerated.” He concluded that a governmental power to force people to buy a product could not be “‘incidental” to the exercise of the commerce power, but “rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority.” Accordingly, it is now clear that any power claimed by Congress under the Necessary and Proper Clause must be incidental—meaning that it must not be the sort of power that an ordinary reader would assume must be enumerated as a principal power in order to exist.

In addition to being incidental to a principal power, any law enacted under the Necessary and Proper Clause must be “for carrying into Execution” some other federal power. The Necessary and Proper Clause allows Congress to decide whether, when, and how to legislate “for carrying into Execution” the powers of another branch; but it respects and even reinforces the principle of separation of powers. Unlike Randolph’s authorization to “organize the government”—which the Committee of Detail replaced with Wilson’s more exacting phrase “laws…for carrying into Execution” the powers reposed in another branch—can only mean laws to help effectuate the discretion of that other branch, not laws to control or limit that discretion. It gives Congress no power to instruct or impede another branch in the performance of that branch’s constitutional role. For example, Congress could not, under the guise of this clause, dictate to courts how to decide cases, United States v. Klein (1871), or tell the president whom to prosecute. Of course, when the clause is invoked to effectuate ends within Congress’ own powers, it compounds Congress’ discretion: not only the selection of means, but also the selection of policy ends, rests in Congress’ own discretion.

Incidental laws that carry into execution federal powers must also be “necessary” for that purpose. The requirement of necessity entails some degree of causal connection between the implementing law and the implemented power. The degree of that required causal connection between the means chosen and the particular “end” sought, i.e., the specific enumerated power, has been a contentious issue for more than two centuries. Thomas Jefferson, and the state of Maryland in McCulloch, famously argued that a “necessary” law must be indispensable to the achievement of a permissible governmental end. Alexander Hamilton argued that necessity in this context meant merely that a law “might be conceived to be conducive” to a permissible end. And somewhat less famously, but no less importantly, James Madison trod a middle ground, describing necessity as requiring “a definite connection between means and ends” in which the executory law and the executed power are linked “by some obvious and precise affinity.”

In McCulloch, Chief Justice Marshall upheld the Second Bank of the United States, utilizing the very rationale that Secretary Hamilton, and James Wilson before him, had employed. Marshall rejected Jefferson’s view that the clause limits Congress to “those means without which the grant of power would be nugatory.” That would have precluded Congress from deliberating alternatives, and the Court read the clause instead as vesting “discretion, with respect to the means by which the powers it confers are to be carried into execution.” McCulloch countenanced “any means calculated to produce the end,” giving Congress “the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.” According to McCulloch, unless otherwise inconsistent “with the letter and spirit of the constitution,” any law that is “appropriate,” “plainly adapted to that end,” and “really calculated to effect any of the objects entrusted to the government” is valid under the Necessary and Proper Clause. For the judiciary “to inquire into the degree of its necessity,” Marshall wrote, “would be…to tread on legislative ground.”

So long as a law promotes an end within the scope of some enumerated power, extraneous objectives do not render it unconstitutional. Indeed, one means might be preferred over others precisely because it advances another objective as well. For example, besides helping Congress effectuate various enumerated powers, a bank could make private loans to augment business capital or to satisfy consumer wants; while these extraneous ends could provide no independent constitutional justification, Hamilton urged them as principal reasons why Congress should incorporate a bank.

Record-keeping and reporting requirements regarding drug transactions, if apt as means to enforce federal taxes on those transactions, are no less valid because crafted for police ends that are not within any enumerated power. Extraneous objectives are constitutionally immaterial; but to invoke the Necessary and Proper Clause, a sufficient link to some enumerated-power end is constitutionally indispensable.

McCulloch remains the classic elucidation of this clause, but it has been elaborated in many other cases, such as in the proceedings concerning the Legal Tender Act of 1862. Congress, in an effort to stabilize commerce and support military efforts during the Civil War, determined that new paper currency must be accepted at face value as legal tender. The Supreme Court, in the Legal Tender Cases (1871), affirmed Congress’ discretion to choose among means it thought conducive to enumerated-power ends. The Court upheld Congress’ choice, even though better means might have been chosen, and though the legal tender clause proved to be of little help. “The degree of the necessity for any Congressional enactment, or the relative degree of its appropriateness, if it have any appropriateness, is for consideration in Congress, not here,” said the Court.

After the Preamble, the very first sentence on the Constitution reads: “All legislative powers herein granted shall be vested in a Congress of the United States…” Therefore, evaluating whether a federal law is constitutional must begin with whether Congress has acted within one the enumerated powers it is granted in the Constitution. Identifying the meaning of an enumerated power, however, is only part of what is required to establish that Congress is or is not acting constitutionally within its delegated powers. We must also reach a conclusion about the meaning of the Necessary and Proper Clause. The meaning we attach to that clause not only determines the scope of congressional power, but determines as well the degree of deference that courts owe a congressional judgment that it is acting within its powers. If you take the view attributed to Marshall that “necessary” means merely convenient or useful, then courts are generally unqualified to second-guess a congressional determination of expediency. On the other hand, if the clause requires (a) a showing of means-ends fit—as per Madison, Jefferson and even Hamilton—together with a showing that (b) the means chosen do not prohibit the rightful exercise of freedom (or violate principles of federalism or separation of powers) and (c) the claim by Congress to be pursuing an enumerated end is not a pretext for pursuing other ends not delegated to it (as per Marshall in McCulloch), then an inquiry into each of these issues is clearly within the competence of courts.

The meaning one attributes to the terms “necessary” and “proper” is, therefore, enormously important because the nature and scope of judicial review turns on which meaning one adopts. The evidence presented in this article should be significant to the many who believe that the answer to this interpretive question turns in whole, or in part, on the original meaning of the Necessary and Proper Clause.

Law school constitutional law courses sometimes treat McCulloch the same way. But with all respect, this approach is the product of historical ignorance. Those who depict McCulloch as a “big government” decision are generally unaware of how the Founders understood the Necessary and Proper Clause and how the bank debates of 1791 focused on the details of incidental powers law. They usually are unaware of critical changes in the English language—such as the fact that when Marshall’s used the words “convenient” and “appropriate” they embodied narrower and tougher standards than they do today. Without that kind of historical perspective, McCulloch is a difficult case to understand. And if you read McCulloch in isolation, you might think Marshall’s rejection of narrow interpretation meant he favored broad interpretation. But as Marshall’s other writings make clear, his standard was fair construction: He believed we should interpret the Constitution as its ratifiers understood it—neither more narrowly nor more broadly.

All Gun Control is Racist

All Gun Control is Racist

One could make a very good argument that our nation’s oldest and most successful gun control advocacy group was the Ku Klux Klan. Their earliest incarnation was largely a means of disarming newly freed blacks. For the last five years we have been hearing from much of the corporate media networks, such as CNN and MSNBC, that our nation is awash in Klansmen all across the country preaching their hateful belief in white supremacy.

This has seemed like an utterly baseless claim, built on the idea of “dog whistling racists” spreading their rhetoric with a wink and a nod. But over the last week I have come to realize they are absolutely right. They have cleverly taken off their hoods and white robes in exchange for a three-piece suit and a law degree as their distinguishing means of secret identification of their fellow bigots and appear to have gone through some serious rebranding. Changing the name of their organization from the KKK to the ACLU.

It was also about five years ago when the ACLU put out a public statement that their organization had decided to stop considering taking on any litigation that was predicated on defending the right to keep and bear arms as an essential civil liberty. But nothing could have prepared me for the more recently announced position from this organization which I once held in the highest regard. That the Second Amendment isn’t a right, it’s a manifestation of white supremacy and anti-blackness. Not only has the ACLU turned its back on the Bill of Rights they were founded to protect, they have collectively forgotten how to even read the Constitution.

The Constitution is not the law that governs us. The Constitution is the law that governs those who govern us. To act as though the Second Amendment is a grant to the people of a right to keep and bear arms is a legal absurdity. The right of every individual to defend themselves by force of arms is a natural right we had before our government was formed and it is a right we will have long after the American Empire collapses. As the preamble to the Bill of Rights states:

The States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers that further declaratory and restrictive clauses should be added

The Second Amendment has nothing to do with protecting our right to arms. It is a declaratory statement that reminds the government that because this right exists, independent of any document stating as much, that they have no business ever taking arms from any individual.

It says nothing about race, and therefore any attempts by government to disarm any group of people cannot be restricted either through the democratic process or government fiat. Any time our government has denied the right to own arms to certain groups of people, or to remove the right to own a particular category of firearm from all people, what has taken place is an abrogation of the Second Amendment and is repugnant to their expressly delegated Constitutional authority.

And though the Second Amendment is an individual right, if, for the sake of argument, we grant the ACLU’s indefensible claim that the Second Amendment is a collective right of militias (or as Justice Stevens erroneously claim in DC v Heller (2008) that the Second Amendment is an individual right to arms, predicated on service in a militia) that doesn’t change the fact that the militias were never created as an excuse for a group of racist thugs to terrorize slaves by breaking into their quarters to ransack the place looking for weapons and escaped slaves. Not one shred of evidence backs that up. Every single source we have from the Founders as the government was being formed makes clear the militias are essential to make standing armies unnecessary if possible and if a standing army must be formed, the militia acts like a bulwark to protect the citizens should the government turn that standing army against us. It guarantees that if push comes to shove, the Second Amendment is there to make sure the people, and not the government, are the ones doing the pushing and the shoving.

The militia was not a domestic police force. We continued to approach law enforcement much the same as we did when we were still colonies under the British Common Law. There was generally an official, like a sherriff who could put out the hue & cry or enable the posse comitatus.

This whole argument by the ACLU shows the complete lack of principles that is fundamental to a “Living Constitution”—when a text can mean anything, it will always mean nothing.

It is a sad fact that when our government created this brilliant charter that is the Constitution, premised on limited government and individual liberty, we did not truly live those values right away. But the ACLU doesn’t really believe the Second Amendment is racist, they just don’t like the fact that the majority of Americans have not fully submitted to the government as their one and only protector. They need us to give up our guns for that to happen.

In fact, I can prove their disapproval has nothing to do with racism. The reason the statutory companion to the Fourteenth Amendment, the Civil Rights Act of 1867 guarantees all individuals, including the freedmen was because too often, black were being denied their right to bear arms, in spite of the Second Amendment, not because of it.

“To have full and equal benefit of all laws and proceedings for the security of persons and estates, including the Constitutional right of bearing arms” (Civil Rights Act of 1867, Public Law 14 Stat. 27-30,)

If you extend this logic to the other amendments and statutes that were meant to protect the rights of freedmen that were often being denied you would have to say that voting is racist. After all, the Fifteenth Amendment needed to be passed, because despite being citizens, many freedmen were also being denied the right to vote by the same racists denying their right to have a gun for defense. The only principled conclusion the ACLU could reach is that voting is racist and democracy is a clear extension of white supremacy and anti-blackness that is supposedly inseparable from any right that was not universally recognized and equally protected for all people from the Constitution’s ratification in 1789 to today.

In fact, voting is even more bigoted than the right to bear arms. There has never been a time in this country when women were denied the right to own, carry or use a gun for all lawful purposes. But they weren’t allowed to vote for over 100 years until the passage of the Nineteenth Amendment. When the ACLU comes out against voting as a means of sexist oppression and declare democracy a bigoted curse of the patriarchy I will be happy to take their claims the Second Amendment is racist as something they actually believe.

I’m not sure why a group like the ACLU that, to their credit, seem to understand the very existence of a police force poses an existential threat to our safety and liberty take such a strong stand against citizens keeping arms to take responsibility for their own protection.

The ACLU recognizes that the truly corrupt cops are more than just “a few bad apples.” They aren’t the entire bushel either. But even the most honest, integrous police officer who genuinely wants to make his community better and do everything by the book are themselves a threat too. Because the book they follow imposes all manner of police powers that are wholly inconsistent with many of the provisions of our theoretically “limited government” and the vast majority of laws they enforce are entirely immoral prima facie.

Even police who may be very good, honest, ethical people in their private lives believe that they are doing the right thing when they throw people in cages for carrying a plant on them. They believe they are doing the right thing when they seize thousands of dollars in cash and tens or hundreds of thousands of dollars’ worth of personal property under civil asset forfeiture laws. Because the only people who carry cash and own nice things are all drug dealers, or something. The ACLU seems to understand all these things perfectly well and agree even these actions, though inside the bounds of the law, are outside the bounds of ethical policing. And yet they want these people who already have a dangerous excess of power to be the only people with guns, and that somehow we can trust them to only use that totalitarian level of control in a way that is helpful to law abiding citizens and used in proportion to the amount of force necessary against the criminal elements of society.

And that all gun control is inherently racist it seems absurd I would even have to explain why. Until the end of the Civil War, the several states were a de facto equivalent of our modern de jure constitutional carry. Once blacks gained their freedom and citizenship is when the first gun control laws were enacted. That these measures were officially known as “The Black Codes” tells you everything you need to know about their purpose. The next great gun grab was the passage of the NFA in 1934. This was sold to the general public as a necessary step to protect people from those shifty Italians that made up the mafia (who only came into existence after the government created a black market so lucrative, by passing the Volstead Act and eventually passing the Eighteenth Amendment’s prohibition on liquor).The government needed a scapegoat, so the violence they created wasn’t blamed on them. We just needed to get rid of those machine guns, short barreled rifles, and silencers that were so popular among the bootleggers, then these violent foreigners couldn’t kill each other anymore. Because of course they won’t just commit a criminal act and keep the banned guns they own.

Next was an amendment to the NFA under Title II,, known as the GCA (Gun Control Act) of 1968, passed bcause white people were terrified that groups like the Black Panthers were beginning to think they had a right to also have weapons for lawful self-defense. After the inner-city riots in Watts and Detroit, as well as the Black Panthers showing up in the Capital Building in California where the legislature was meeting, representatives got really scared and passed “The Mulford Act” in California that became the basis for the federal laws passed later on, unquestionably meant to take guns from these minorities tired of being treated as second class citizens and taking their rights into their own hands. That every major act of gun control here in America has always been motivated by racism is clear, we saw the same thing with the 1986 amendment to the NFA, known as FOPA, and the 1994 “Assault Weapons” ban that was part of the racist policies that were meant to get tough on crime and mostly ended up destroying the family unit in the inner-city where these policies were targeted.

I understand that from its founding we have often fallen short of living up to that vision of equal liberty for all people. But that doesn’t make it a bad idea, and it doesn’t mean the better solution is to give up our natural rights and exist in perfect and equal tyranny. I prefer perfect and equal liberty for all. I don’t know if that’s possible. But it’s worth continuing to strive towards. In the mean time I’ll take imperfect liberty over perfect tyranny every time.

The Intersection of Julian Assange and the First Amendment

The Intersection of Julian Assange and the First Amendment

With the United States’ main witness against Julian Assange recently admitting he completely fabricated every allegation he had made to the FBI, I thought this might be a good time to look at three other misconceptions related to Assange’s persecution. The consistent theme throughout this essay will be freedom of expression in its original and traditional meaning. We are going to be looking at a few aspects of the First Amendment that directly affect Julian Assange at present and consequently for every one of us. Assange Is something of a canary in the coal mine alerting us to an excess of government power. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.

Reflecting on the particulars of Assange’s case can teach us about just how far we have strayed from a true understanding of the First Amendment. How have we become strangers to both the letter and the spirit of the law? I can’t help but wonder if we stand on the precipice of a moment in time described by the Baron de Montesquieu when he said, “A Nation may lose its liberties in a day and not miss them in a century.”

Our focus will be the on the clause stating:

Congress shall make no law abridging the freedom of speech or of the press.

We will be covering two misconceptions about the clause. First that Julian Assange has no constitutionally protected rights. That he, as a non-citizen, can be subject to the punishment of our laws without also being afforded their full protection. Which makes it nothing more than a bill of temporary privileges.

As Justice Scalia was very fond of saying:

Every tin pot dictator and Banana Republic has a bill of rights. That’s not what protects the individual liberty of the people. It comes from the limited government to be found in the Constitution.

Once we start acting under the presumption that our laws and their protections are conditional or revocable, we have surrendered to them the limited form of government that makes the Bill of Rights worth a damn. A belief in the self-limiting concept of individual liberty, protected by parchment barriers may well be as destructive to individual liberty as if we had just done away with the concept entirely. If that sentiment ever becomes the normative view in this country we will end up with all the tyranny and bad government we deserve.

Second is a common misconception which is the idea that “freedom of the press” refers to the press as a profession and not as a technology.

It’s a belief common enough that when Wikileaks dropped Hillary Clinton’s emails, Chris Cuomo said on CNN, “You can’t possess these documents, they were stolen, it’s illegal. It’s different for us as members of the press.” I cannot, nor would I ever want to, get inside the steroid-riddled mind of Chris Cuomo, but prudence and common sense would dictate he would lump Julian Assange with the rest of us plebs as nothing more than a common thief for having these public records. When the only difference between Cuomo and Assange is that Julian believes himself a journalist because he is. Cuomo believes himself a journalist because he doesn’t know any better.

The overall point I want to get across is two-fold:

  1. First come rights, then comes government.
  2. The Constitution is not the law that governs us, it is the law that governs those who govern us.

The first point has been perfectly exemplified by Thomas Paine:

A natural right is an animal right and the power to act it is supposed, either fully or in part, to be mechanically contained within ourselves as individuals.

The second part was exemplified by the preamble to the Bill of Rights:

The conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent start of its institutions.

Myth #1: The Belief In Constitutional Rights

When I refuse to obey an unjust law I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of Mankind.

In this quote Alexis de Tocqueville is appealing to a concept largely forgotten by Americans today—natural law.

This essay argues that founding era elites shared certain understandings of speech and press freedoms, as concepts, even when they were divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural law that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inherent in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Indeed, one of the most helpful suggestions I got while working as a law clerk when dealing with constitutional clauses was, “To interpret the meaning of the text, you need to find the right level of abstraction.”

In founding era discourse, rights were divided between natural rights, which were liberties that people could exercise without governmental intervention, and positive rights, which were legal privileges or immunities defined in terms of governmental action or inaction, like the rights of due process, habeas corpus, and confrontation. Consequently, distinguishing natural rights from positive rights was simple. This was the point Thomas Paine meant to exemplify in that above quote.

Natural rights, in other words, were those that did not depend on the existence of a government. Speaking, writing, and publishing were thus readily identifiable as natural rights. Though easy to identify, natural rights at the founding scarcely resembled our modern notion of rights as determinate legal constraints on governmental authority. Rather, Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented. And assessing the public good—generally understood as the welfare of the entire society—was almost entirely a legislative task, leaving very little room for judicial involvement.

Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal “trumps” in the way that we often talk about rights today. In part, the common law indicated the scope of natural rights both because of a presumed harmony between the common law and natural law and because common-law rules were presumptively based on popular consent and consistent with the public good. At the same time, the Founders sometimes used natural law—the law of reason—to help shape their understandings of positive law. To recognize a natural right, in other words, implied recognition of its customary legal protections, and vice versa. Simply put, however, the First Amendment did not enshrine a judgment that the costs of restricting expression outweigh the benefits.

At most, it recognized only a few established rules, leaving broad latitude for the people and their representatives to determine which regulations of expression would promote the public good. Whether modern doctrine serves those original principles is then a judgment that we must make. The original meanings of the Speech and Press Clauses do not provide the answer. Nonetheless, the Founders also accepted that speech and press freedoms denied the government narrower slices of regulatory power. Everyone agreed, for instance, that the liberty of the press encompassed at least the common-law rule against press licensing. Americans also prized the right to a general verdict in sedition trials—enabling juries to decide questions of law and fact—and the right to present truth as a defense based largely on natural-rights principles.

Not surprisingly, then, the Founders invoked the natural right of expressive freedom in all sorts of ways. References to the freedom of speaking, writing, and publishing seem to have been the most common, probably because that phrasing appeared in the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777. In the committee that revised Madison’s proposed Bill of Rights, for instance, one draft mentioned “certain natural rights which [we] retained,” including the right “of [s]peaking, writing and publishing…with decency and freedom.” But in the course of discussing natural rights, contemporaries also mentioned the “right to speak,” “[t]he right of publication,” “the natural right of free utterance,” the “liberty of discussion,” “the liberty of the tongue,” the “exercise of…communication,” and so forth.

Eighteenth-century commentators sometimes referred to “the liberty of the press” as a natural right, too. “Printing,” after all, was “a more extensive and improved Kind of Speech.” Some Founders distinguished the freedom of publishing as a natural right from the freedom of the press, as a common-law rule against press licensing. (In eighteenth-century English, “the press” was a reference to printing; the term did not refer to journalists until the nineteenth century.) But the use of this terminology was fluid, and founding era discussions of press freedom often alluded to natural-rights concepts. Some writers even equated “the Liberty of the Press” with “the Liberty of publishing our Thoughts in any Manner, whether by Speaking, Writing or Printing,” thus treating speech and press freedoms as synonymous.

Myth #2 : The First Amendment Protects a Profession, Not an Activity

Following the Wikileaks publication of the now infamous “Collateral Damage” video and foreign cables from U.S. officials, Daniel Benjamin, U.S. Coordinator for Counterterrorism at the time, had the following to say:

I don’t believe in imprisoning journalists, but I believe I we all agree someone who is stealing government information wholesale ought to be punished for that…The damage was enormous…I am open to the possibility that selective release might have been justified, but not wholesale release. What sense does that make?

So, when people withhold “the truth, the whole truth and nothing but the truth” we are guilty of perjury. When we do disclose the truth, the whole truth and nothing but the truth we are guilty of espionage.

He appears to be upholding the right of a free press. But he makes arguments in favor of prior restraint as well as the right to be punished for what you say after the fact. He then goes on to make two of the arguments against free press I mean to dispel:

I believe Julian Assange is closer to a spy than a journalist and Wikileaks is closer to a hostile foreign intelligence service than a publisher. Because, in fact, his business is engaged in stealing information and his use of information is not informed by a story, by a narrative, by a public point that needs to be made.

First he claims that WikiLeaks doesn’t have press rights because these were stolen documents. He even says WikiLeaks stole them, which we know isn’t true or Chelsea Manning wouldn’t be in prison as we speak for stealing those documents. (I take that last sentence back. This is clearly a man who has no compunctions about locking up Assange for a theft he didn’t commit. Manning did confess to the theft, but her guilt seems almost incidental.)

At least with Assange, this is quickly dispelled when we consider the precedent set by the Supreme Court in the case of Bartnicki v. Vopper, 532 U.S. 514.

The Court recognized that those who lawfully obtain information pertaining to a matter of public interest have a near absolute right to publish it even if their source illegally obtained the information. Prosecuting WikiLeaks for its role in this fundamental democratic process will undermine these vital protections.

His second claim that Assange can’t be a member of the press because all he did was provide neutral, transparent facts. It’s as though bias, narrative, and spin are the indispensable quality of a good journalist. A claim that would be laughable if the results weren’t destroying the lives of good men as well as their friends and family.

There is certainly something to be said for realistic expectations of human nature over notions of journalism as a sphere of Platonic perfectionism, but to view the deviations from the ideal form for the ideal itself offers a striking insight into the minds of the people crafting our domestic laws and foreign policies. But I digress.

Early formulations of the freedom of the press spoke of it as a right of every “freeman,” “citizen,” or “individual.” These formulations often set forth narrow substantive views of the “freedom of the press.” But, whatever the scope of the right, it belonged to everyone (or at least all free citizens).

Blackstone, for instance, wrote in 1769 that “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press.”

Jean-Louis de Lolme, an author widely cited by 1780s American writers, likewise wrote in his chapter on “Liberty of the Press” that “[e]very subject in England has not only a right to present petitions, to the King, or the Houses of Parliament; but he has a right also to lay his complaints and observations before the Public, by the means of an open press.”

The right to present petitions, of course, was not limited to the press as an industry, but really did belong to “[e]very subject.” De Lolme’s explanation suggests that the right to speak to the public via “an open press” likewise extended to all subjects, whether or not they used the printing press for a living. State supreme courts in 1788 and 1791 similarly described the liberty of the press as “permitting every man to publish his opinions,” and meaning that “the citizen has a right to publish his sentiments upon all political, as well as moral and literary subjects.”

Justice Iredell described the liberty of the press in 1799 as meaning that “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public.”

St. George Tucker, in 1803, defined the “freedom of the press” as meaning that “[e]very individual, certainly, has a right to speak, or publish, his sentiments on the measures of government.”

Several early state constitutions echoed this as well, providing that “[e]very citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.”

Likewise, Justice Story, who wrote in 1833 but who had learned the law in the decade following the enactment of the Bill of Rights, described the First Amendment as providing that “every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person…or attempt to subvert the government.”

These references to a right of “every freeman,” “every man,” “every citizen,” and “every individual” appear to refer to every person’s right to use printing technology. They are much less consistent with the notion that the right gave special protection to the few men who were members of a particular industry. Some early state constitutions mentioned both the “every citizen” phrase and, separately, the “liberty of speech, or of the press,” but as the Pennsylvania Constitution of 1776 shows, these formulations did not describe separate rights. The Pennsylvania text read, “That the people have a right to freedom of speech, and of writing and publishing their sentiments: therefore the freedom of the press ought not to be restrained.”

Which suggests that the freedom of the press was a restatement of the right of “the people” to publish. Early cases, such as the 1803 Runkle v. Meyer decision, likewise treat the “liberty of the press” as equivalent to the provision that “every citizen may freely speak, write and print on any subject.” And St. George Tucker, Chancellor Kent (James Kent), and Justice Joseph Story all treated the First Amendment phrase “freedom of the speech, and of the press” as interchangeable with the state constitutional provisions that “every citizen may freely speak, write, and publish his sentiments.”

The view that “freedom of the press” covers “every citizen,” even people who aren’t members of the publishing industry, also makes sense given how many important authors of the time were not members of that industry.

And while those newspapers doubtless contributed facts and opinions to public debate, some of the most important such contributions in newspapers came from people who were not publishers, printers, editors, or their employees—Madison, Hamilton, and Jay’s The Federalist Papers are a classic example. “[N]ot a few of the country editors…depended for what literary work their vocation demanded upon the assistance of friends who liked being “contributors to the press without fee.”

It seems unlikely that the Framers would have secured a special right limited to this small industry, an industry that included only part of the major contributors to public debate. This is especially so given that some of the most powerful and wealthy contributors, such as the politicians and planters who wrote so much of the important published material, weren’t part of the industry.

The grammatical structure of the First Amendment likewise suggests that the freedom was the freedom “of every freeman” or “every citizen” to use the press-as-technology, and not a freedom belonging to the press-as-industry.

As Justice Scalia pointed out in Citizens United, the shared words “freedom of” in the phrase the “freedom of speech, or of the press” are most reasonably understood as playing the same role for both “speech” and “press.”

The “freedom of speech” is freedom to engage in an activity, much like “freedom of movement” or “freedom of religion.” In particular, it is the freedom to use the faculty of speech this suggests that “freedom of the press” is likewise freedom to engage in an activity by using the faculty of the printing press. This is supported by sources that discuss the “freedom in the use of the press.”

St. George Tucker’s influential 1803 work, in discussing the freedom of the press, spoke of “[w]hoever makes use of the press as the vehicle of his sentiments on any subjects.”

The freedom of the press was freedom in the use of the press. Any government that wants us to believe they respect the freedom of the press can do nothing less than respect the freedom of Julian Assange.

A Right to Your Property, And A Property in Your Rights

A Right to Your Property, And A Property in Your Rights

Introduction

If you are anything like me, over the last year, every time you hear rioters or their leftist enablers claim the massive property damage and obscene looting just aren’t a big deal. “They are angry because someone lost their life. That is more important than worrying about stuff and things,” they say. “It’s just property they are destroying and stealing…” If you are anything like me, every time you hear that somewhere deep down inside of you died just a little bit. That’s because you know that all rights, even the right to life itself, is a property right. If you have never considered that before, or your instinctual reaction is that doesn’t make sense, I know where you are coming from. I felt the same way the first time I heard that argument. But by the end of this essay you will clearly understand how that can be.

I want to discuss what property rights are, and their meaning and purpose in law. But first I want to describe what property rights are not. Because both the left and the right tend to see the classical liberal view that all rights are property rights as a kind of materialistic, pedantic and one-dimensional concept, so let’s tackle that prejudice before we discuss what the classical liberal view of property rights is.

The left (and even the socially conservative right) seem to believe that libertarians believe property rights no matter what. Property rights no matter what. That’s because people acting as self-owners and respecting their self-ownership requires a kind of laissez-faire, pro-property rights regime (even if it immiserates the poor and leads to widespread poverty and misery).

But you would be hard pressed to find a libertarian who actually supports such a position. I’m a strong advocate of property rights. But, in one way or another, most believe that a system of property rights is supposed to solve real human problems and make our lives better. Most libertarians advocate free markets and property rights in large part because they think this will tend to make people’s lives richer and easier.

As a matter of moral theory, it’s a bad idea to defend absolute property rights regardless of consequences. Doing so is both an intellectually weak argument and unlikely to persuade anyone not already strongly sympathetic to libertarianism. Defending absolute property rights leads to absurd conclusions and potentially indefensible hypotheticals. Such as the following example I poached from David Friedman: If I have an apartment on the fifteenth floor of an apartment complex and one night I trip and fall off the balcony, but I am able to grab the railing of the apartments right below me on the fourteenth floor but the person who lives there says, “That’s my railing get off my property,” a belief in absolute property rights gives me no option but to let go of his balcony and fall to my death.

I explain that so I can say this: do not mistake my point that all rights are property rights as characteristic of the largely unfair libertarian caricature of property rights no matter what.

Moral Philosophy

Let’s first establish a working definition of property: that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.

With that, let’s establish a set of first principles. For me the only place to start is John Locke and Lockean natural law. This is essentially a moral code of law that apply to everyone. Locke said:

Reason, which is that Law, teaches all Mankind, who would but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions.

Locke envisioned a rule of Law:

Have a standing Rule to live by, common to every one of that Society, and made by the Legislative Power erected in it; A Liberty to follow my own Will in all things, where the Rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, Arbitrary Will of another Man.

Locke established that private property is absolutely essential for liberty:

Every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour [sic] of his Body, and the Work of his Hands, we may say, are properly his.”

He continues:

The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.

Locke believed people legitimately turned common property into private property by mixing their labor with it, by improving it. Marxists liked to claim this meant Locke embraced the labor theory of value, but he was talking about the basis of ownership rather than value.

These rights are natural in that we have them because of what we are and not because they were given to us by someone. But just saying we have rights isn’t the same as giving an argument for why we have them. To do the latter, we’ll draw on Immanuel Kant’s famous Categorical Imperatives, specifically its second formulation:

Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.

Humans are by nature rational beings possessing dignity. This dignity prevents us from being used by others, and hence we have rights against such use. People “may not be sacrificed or used for the achieving of other ends without their consent, Individuals are inviolable.”

From this we move to a basic principle of self‐​ownership. I own myself and thus have a right to do with myself as I please. You own yourself and have the same right. I don’t own you and you don’t own me. This gives each one of us rights not only to ourselves, but also to the fruits of our labor. These are rights to be free from certain acts by other people (assault, theft, enslavement, etc).

There is a good reason why in Aldous Huxley’s Brave New World (a novel whose dystopian and totalitarian government is much more similar to our lived experience than the default work of Orwell’s Nineteen Eighty-Four —brilliant and prophetic though Orwell was) Huxleyian totalitarian control doesn’t come from an abject fear of the consequences people face if they dare rebel against their slavery as tends to typify Orwellian dystopic worlds. Huxley envisions a world where technocratic social engineering is used in such a way as to make people love their slavery. A common slogan people reflexively repeat in brave new world is that “Everyone belongs to everyone else.”

Our protagonist Bernard resists all the pressures and temptations to give into chemically induced pleasure and the collective activities of social control by suppressing human differences that can cause you to lose your identity and agency. He exclaims:

“I’d rather be myself,” he said. “Myself and nasty. Not somebody else, however jolly.”

The idea that even the most intangible human rights such as freedom, identity and agency, if these are things that can be lost or can be taken from us, it does not suggest that these are things we claim possession of and exercise control over, in exclusion of every other individual.

If rights such as life, liberty, and the pursuit of happiness hold the same definition we give to property rights, doesn’t that necessitate a recognition that those rights are rights that fall under the umbrella of rights that an individual can be said to have a property in? Consider how we talk about someone who is a murder victim. We say that murderer took the life of his victim. Again, we see life as a thing which we possess and which can be taken and possessed by someone else who did not have a claim to it. In moral philosophy this typifies a matter known as distributive justice which itself is a doctrine of establishing property rights. With that general understanding of property rights and their relationship to the protections that we can find in natural law, let’s talk about the role of property rights in constitutional law specifically.

Historical Property Rights

Progressives in the twentieth century have in large part aimed at turning the American people away from their traditional attachment to property rights. A salient feature of their efforts has been the promotion of new opinions concerning the American Founders and their appreciation for the importance of those rights.

Within intellectual circles, progressives have tended both to acknowledge that the Founders attached great significance to property rights and to denigrate them precisely for this attachment. The harsher critics, beginning with Charles Beard, ascribed to the Founders selfish motives in establishing a constitution that provided generous protections for private property; his claim was that the principal goal of such a constitution was to protect the wealthy elite against the democratic majority.

Beard’s assertion has been coupled with the claim made by other scholars that not only were the Founders selfish, but they also understood all human beings to be primarily selfish, acquisitive creatures. In his influential book, The American Political Tradition, Richard Hofstadter wrote:

They thought man was a creature of rapacious self-interest, and yet they wanted him to be free—free, in essence, to contend, to engage in an umpired strife, to use property to get property. They accepted the mercantile image of life as an external battleground, and assumed the Hobbesian war of each against all.

Milder “liberal” critics tended to focus their criticism not on the selfishness of the Founders, but on the infeasibility of their system in modern America. In his book, The Promise of American Life (1909), Herbert Croly, the founder of The New Republic, argued that the Founders’ individualism had been appropriate to an agrarian pioneering nation, but was destructive to the modern industrial state, which needed vigorous direction from the national government. He criticized his contemporaries who failed to realize “how thoroughly Jeffersonian individualism must be abandoned for the benefit of a genuinely individual and social consummation.”

Outside intellectual circles, however, the popular rhetoric of the progressives has not openly attacked the Founders for their attachment to property rights; rather, it has denied they had such an attachment. Franklin Roosevelt, eager to convince the public that the New Deal was not so new, but actually a “fulfillment of old and tested American ideals,” often argued publicly that the Founders did not understand property rights to be as important as other individual rights. In one campaign speech, Roosevelt remarked that Jefferson had distinguished between the rights of “personal competency” (such as freedom of opinion) and property rights; while the former were inviolable, the latter should be modified as times and circumstances required.

Property Rights Paramount

A reading of the important founding documents, however, shows clearly that the Founders held property rights to be as important as other human rights. In fact, at times they insisted that the right to acquire and possess private property was in some ways the most important of individual rights.

Only one who ignores the history of the founding period could deny that the men of that era held the right to private property in high esteem. Indeed, it could be said that the central question of principle that animated the movements that led to independence and the framing of the Constitution concerned property rights; for it was a threat to property rights, in the form of taxation without representation that initiated the crisis that led eventually to independence. Moreover, it was largely the undermining of property rights by state legislatures under the Articles of Confederation that prompted the framing of a new national constitution that would protect the individual right to property against infringement by national and state government power. (The state abuses of power during the 1780s included the cancellation of private debts either directly or indirectly, especially through deliberately inflationary policies and the emission of worthless paper money as legal tender.)

So insofar as the Founders made any distinction between property rights and other individual rights, they insisted that property rights were at least as important as personal rights. In Federalist 54, James Madison stated tersely:

Government is instituted no less for the protection of the property than of the persons of individuals.

As Madison later elaborated, property rights are as important as personal rights because the two are intimately connected. The right to labor and acquire property is itself an important personal right and entitled to government protection; and the property acquired through the exercise of this personal right is entitled, by derivation, to an equal protection. As he put it in his “Address at the Virginia Convention”:

It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated. The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right.

If property rights were understood to be as important as other rights, how are we to account for the failure of the Declaration of Independence to mention the word and its conspicuous substitution of the phrase “pursuit of happiness,” thus altering the traditional Lockean formula, “life, liberty, and property”? Does this not suggest at least a subordination of property rights to other rights? Indeed, some contemporary scholars have argued that the language of the Declaration manifests the Founders’ intention to subordinate private property to happiness, understood as public happiness. Yet the founding documents make abundantly clear that their authors understood the right to property to be an integral part of the unalienable right to liberty. The authors of the Virginia Bill of Rights, the immediate antecedent to the Declaration, made this explicit. The first article of that charter states that all men “have certain inherent rights . . . namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” (emphasis added).

Taxation Without Representation

Because Americans understood the right to property as part and parcel of the right to liberty, they viewed taxation without representation—a violation of their economic freedom—as an attack on the whole of their freedom. The Stamp Act Congress, called to protest the first of those taxes, declared that “it is inseparably essential to the freedom of a people . . . that no taxes should be imposed on them, but with their own consent.”

In a similar vein, Jefferson wrote:

Still less let it be proposed that our properties within our own territories shall be taxed or regulated by any power on earth but our own. The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.

In fact, American authors continually insisted that such taxation, however small the amount, on principle was tantamount to slavery. As one patriot, Silas Downer, affirmed, if the colonists yielded to the tax power of the British Parliament, this would place them “in the lowest bottom of slavery.” He continued:

For if they can take away one penny from us against our wills, they can take all. If they have such power over our properties they must have a proportion able power over our persons; and from hence it will follow, that they can demand and take away our lives, whensoever it shall be agreeable to their sovereign wills and pleasure.

To make a claim on the economic liberty of individuals or their community is to make a claim on their entire freedom. In the end, no real distinction could rightfully be made between personal and economic liberty. Accordingly, the Founders understood unjust taxation as not merely a financial or economic issue but an issue with implications for the whole of human liberty.

The Founders’ attachment to economic freedom was in no way, in their understanding, opposed to the principle of equality. As Lincoln repeatedly emphasized, the equality proclaimed in the Declaration is not an equality in all respects:

[The] authors of that notable instrument…did not mean to say all were equal in…intellect, moral developments, or social capacity. They defined with tolerable distinctiveness, in what respects they did consider all men created equal—equal in ‘certain unalienable rights, among which are life, liberty, and the pursuit of happiness.’ This they said and this they meant.

Moreover, not only did the Founders’ understanding of equality not include all kinds of equality (such as the equality of economic condition championed by the progressives), their conception of human equality necessarily excluded equality of condition. They believed that everyone had an equal right to exercise his individual abilities to acquire property, abilities that were by nature unequal, and that the equal right to employ unequal talents would necessarily lead to economic inequality. As Alexander Hamilton stated at the Constitutional Convention:

It is certainly true that nothing like an equality of property existed: that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself.

Not only did the Founders affirm that property rights were as important as other personal rights, at times they insisted that property rights represented the most important of rights. In Federalist 10, James Madison wrote that the protection of “the faculties of men, from which the rights of property originate . . . is the first object of government.” In what way did the Founders understand the protection of the acquiring faculties to be the first function of government? Contrary to the assertions of authors such as Richard Hofstadter, it was not because they believed that acquiring property was the main or most important human activity. Men who willingly risked their “lives, fortunes, and sacred honor” for the sake of their country’s freedom were obviously not the type who considered the accumulation of material goods to be the end of human existence.

The lesson that Madison and the other Founders learned from history, especially their own, is that the first object of government is the protection of property rights. On one hand, a foreign faction, the British Parliament, had begun its encroachment on colonial rights with an assertion of taxation power over the property of the colonists. On the other hand, after independence, Americans saw that a domestic faction, namely, a passionate majority operating in state legislatures, could also threaten individual rights; and the first right to be undermined was the right to property, through the pursuit of deliberately inflationary policies and the cancellation of private debts. From such experience, Madison and other leaders learned that statesmen should view property as the most important right because it is most often the first object of a faction’s hostility.

Constitutional Protection of Property

It is true that for the most part our Founder’s did not fully share the Lockean conception of property rights, that being a paradigmatic view of property rights as the source from which all other rights derive.

Because of the relative vulnerability, property rights were afforded the most extensive guarantees in the Constitution. Among the specific limitations placed on congressional power in Article I, most either directly or indirectly were designed to protect property rights. These included: the restrictions on direct taxes, the ban on export duties, the prohibition on preferential treatment of different ports, and the ban on taxation of interstate commerce. These guarantees were later supplemented by the Fifth Amendment’s due process clause and the ban on the national government’s taking property without just compensation (later made applicable to state governments by the Fourteenth Amendment).

The original Constitution provided even more extensive guarantees for property rights against infringement by the state legislatures. These included the ban on state duties on imports and exports, as well as prohibitions on the coinage of money, the emission of bills of credit, the establishment of anything other than gold and silver as legal tender, and the passing of any law impairing the obligations of contracts. Moreover, the bans on state bills of attainder and ex post facto laws were designed to protect property rights more than personal rights. Finally, besides the specific guarantees, the framers of the Constitution established, with the use of such institutional devices as checks and balances, a government designed for stability—a feature they promoted as most friendly to economic freedom.

The second reason that property rights were viewed as primary was that they served as a practical guarantee for other rights. In effect, not only were property rights the most vulnerable, they were also the first line of defense for the other rights. According to the Founders, property was not only a right in itself, but also a means to the preservation of other rights. Economic freedom was understood to serve the other personal freedoms in two ways. First, property meant practical power. An economically independent people were best able to maintain their political independence. Indeed, the ownership of property was of immense importance to the practical independence not only of the people as a whole, but also of the individual citizen. As Edmund Morgan wrote in The Birth of the Republic:

[The] widespread ownership of property is perhaps the most important single fact about Americans of the Revolutionary period…Standing on his own land with spade in hand and flintlock not far off, the American could look at his richest neighbor and laugh.

Moreover, the personal economic independence afforded by private property instilled in the citizenry a spirit of personal independence, a virtue absolutely necessary to a self-governing people. Economic dependence, on the other hand, “begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition,” Jefferson observed. The virtue of the people that comes from personal independence is important because, as Jefferson noted:

It is the manners and spirit of a people which preserve a republic in vigor. A degeneracy in these is a canker which soon eats to the heart of its laws and constitution.

It was because the Founders understood property rights to be absolutely essential to republican virtue that many of them favored restricting the suffrage to property holders. One will look in vain for any statement by the leaders of that generation claiming that those without property were inferior in their unalienable rights or their fundamental human dignity. What many (not all) of the Founders did believe, rightly or wrongly, was that a state in which the privilege of voting was restricted to property holders was the best means to ensure a government that protected the basic rights of all, rich and poor. At the constitutional convention, John Dickinson spoke for many present in arguing that “freeholders”—or landowners—(who constituted the vast majority of the people) were “the best guardians of liberty.”

Those without property were thought to be far too dependent on those with it to be able to exercise an independent vote. Gouverneur Morris argued:

Give the votes to people who have no property, and they will sell them to the rich, who will be able to buy them…The man who does not give his vote freely is not represented. It is the man who dictates the vote.

Although ultimately, the convention decided not to establish national requirements for the suffrage and left it to the discretion of state governments, the sentiments expressed during the convention debates show why many states retained property qualifications for voting; for many leaders understood a property-holding citizenry to be the best guardians of freedom.

Whatever may be the merits of the extension of the suffrage only to property owners, this much is clear: the Founders’ opinions in this regard manifest clearly that they did not hold property rights in low esteem. As we have seen, they viewed the right to property to be not only as important as other human rights, but in some respects as the most important human right. Economic freedom was a most important freedom, and its vulnerability to factional hostility required that it be afforded extensive constitutional guarantees. Paradoxically, this most vulnerable of freedoms was also understood to be the best practical guarantee of the other freedoms; for the private ownership of property provided not only real power to the citizens, it also instilled in them that virtue of self-reliance and self-governance essential to a politically self-governing people.

Declaration of Independence

Most constitutional scholars, classical liberal philosophers and revolutionary era scholars of American history will fully support the fact that all reasonable evidence points to a belief by the Founders that property rights considered them as paramount and on equal footing with individual liberty. Both liberty and property rights were a product of natural law.

But what about my assertion that all rights are property rights? I have surprisingly not yet found Nowhere in my long term study of these topics over the years have I found a scholar who will make the claim this concept can be empirically tied to our founding documents.

All we have to do is what we should have been doing all along, interpreting the founding documents that make up our organic laws as legal documents, since that is precisely what they are. While it’s a fair point to say the Declaration of Independence is not binding law, the same way our Constitution is binding law, it does make sense when we approach the most fundamental documents pertaining to constitutional law with the fundamental approach our Founder’s took when drafting them. That one should always start with first principles. As for me, I can’t think of a better way to approach that task than how the great constitutional scholar and classical liberal philosopher Randy Barnett suggests:

That the Constitution is not the law that governs us, it is the law that governs those who govern us.

Likewise the first principles of interpretation of the Declaration of Independence is that first come rights, then comes government.

So, the Declaration of Independence is the charter of rights we had before government, which government was then created to protect, and can then be converted into a Constitution whose rules may in combination be used to limit the power of government. That way it performs those functions that it ought to perform, but doesn’t engage in those excesses that those to whom we delegate power will inevitably seek to usurp.

So, with all that in mind, let’s approach the words of our Declaration of Independence in light of its nature as a legal document. Specifically, the line we have been focusing on in the document that states our conception of natural rights:

We hold these truths to be self-evident, that all men are created equal, and are endowed by their creator with certain unalienable rights. That among these are life liberty and the pursuit of happiness.

While you can certainly find loose definitions of the term unalienable as a right that cannot be surrendered, sold or transferred, it does have a very particular meaning in English Common Law. Because this was a document drafted by and for government in common law jurisdictions it should be interpreted the way all legal documents are properly interpreted, by applying to them the meaning it would have been understood to have at the time it was drafted.

“Alienability” is derived from property law. When we turn to the fundamental treatise on the common law, Blackstone’s commentaries on the common law says the following about the concept of alienability:

In property law, alienation is the voluntary act of an owner of some property to dispose of the property, while alienability, or being alienable, is the capacity  for a piece of property or a property right to be sold or otherwise transferred from one party to another. Most property is alienable…Some object are incapable of being regarded as alienable property and whose property rights are to be regarded as inalienable, such as people and body parts.

The significance of this is immediately apparent. The only thing that can be called alienable or inalienable must by definition be property and anything endowed with an inalienable right must, by definition be endowed with a property right. This means life, liberty and the pursuit of happiness no matter how they are individually defined or to what they are particularly applied must be defined as a kind of property and to them must be applied property rights.

This also explains why we can acknowledge Jefferson replaced the concept of property rights with the pursuit of happiness without somehow subordinating or denigrating property as something less than a natural right. Because an assertion that a right to property is a property right is a tautology.

Madison Essay on Property

I want to close with an excerpt from James Madison’s 1792 essay on property rights, which arguably constitutes the most poignant argument for this article’s assertions I have yet to find:

This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.” In its larger and juster meaning, it embraces everything to which a man may attach a value and have a right; and which leaves to everyone else the like advantage. In the former sense, a man’s land, or merchandize, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.

Where there is an excess of liberty, the effect is the same, tho’ from an opposite cause. Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own. According to this standard of merit, the praise of affording a just securing to property, should be sparingly bestowed on a government which, however scrupulously guarding the possessions of individuals, does not protect them in the enjoyment and communication of their opinions, in which they have an equal, and in the estimation of some, a more valuable property.

More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy? Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.

That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest. A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Hindustan, under appellations proverbial of the most complete despotism.

That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called. What must be the spirit of legislation where a manufacturer of linen cloth is forbidden to bury his own child in a linen shroud, in order to favor his neighbor who manufactures woolen cloth; where the manufacturer and wearer of woolen cloth are again forbidden the economical use of buttons of that material, in favor of the manufacturer of buttons of other materials!

A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.

If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the influence will have been anticipated, that such a government is not a pattern for the United States.

If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.

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