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.

To Beat, Or Not to Beat – That Is the Question

To Beat, Or Not to Beat – That Is the Question

A few weeks ago, the Libertarian Institute republished a fantastic article by Matt Agorist.

WATCH: Cops Taser, Beat the Hell Out of Teens Because They Were Vaping Outside

Where he makes a very salient observation:

Even when there are videos of blatant displays of government violence being inflicted on citizens over the enforcement of victimless crimes, most of America reacts with callousness and statements like, “if you don’t break the law, you have nothing to worry about. As the following video illustrates, until this mentality shifts, police in America will continue to use violence against citizens who cause no harm…

The video in question shows several callous and unprovoked attacks including one teen with his hands up, who is told by police to take off his backpack. While fully-complying with that order, he is tasered.

Another teen who refused to show his ID is tackled, hog tied, and received several strong blows to his ribs from an officer’s knee. All while being told “stop resisting” in footage that clearly proves he was not resisting.

Both teens were arrested despite the fact that public vaping is not an arrestable offense. And under Maryland’s “Stop and Identify” statute (Md. Criminal Code §4-206) he was under no obligation whatsoever to produce an ID on demand, even during an investigative detention. Ocean City’s finest didn’t let a few minor details like public vaping and failure to ID not being arrestable offenses get in the way of their right to arrest, hog-tie, and brutalize these young black men.

Matt’s article gave a great overview of the kind of ignorance that needs to change among “law and order” conservatives if we ever hope to make police brutality unacceptable. But there is another group whose ignorance is, I would argue, an even greater problem to be overcome if we want police brutality to stop. That being the attitude of moralizing “Karens” who see themselves as paragons of virtue and morality, who take it upon themselves to demand public vaping laws be passed without thinking through the consequences of their actions. Like the busybodies who advocate public vaping be made an issue that is dealt with by guys with guns who are authorized to enforce the law with violence; who somehow become incredulous when public vaping laws are enforced with violence.

This brings us to a group called: Campaign for Tobacco-Free Kids.

Who, following this incident issued a public statement of condemnation on Twitter, what they called their “disturbing statement” (a title that was even more correct than they realized). It reads;

We are horrified and outraged by the incident of police violence against Black teenagers in Ocean City, MD, this weekend. There is absolutely no place for violence and abuse in enforcing tobacco laws. The purpose of such laws is to keep people safe and healthy. Our communities cannot be safe and healthy when police choose to enforce these laws with violence, often disproportionately against black and brown people. There must be a full investigation of this incident and accountability for the use of force against these young people.

There is a lot to unpack there.

First, this had absolutely nothing to do with enforcing tobacco laws. This may seem like a petty complaint, but the fact is that this kind of sleight of hand regarding definitions, in the hands of untrustworthy politicians (also known as politicians) and public interest groups who know how to exploit it can be a very big deal. The best example is the way the term “assault weapon” was created by the Violence Policy Center (VPC), who took advantage of the 1986 NFA amendment that banned the sale of Assault Rifles. So, in a 1988 white paper by VPC Director Josh Sugarman called “Assault Weapons In America,” he wrote;

That this new term, Assault Weapon, should be applied to common semi-automatic sporting rifles (like AR-15’s) to exploit the public’s ignorance about guns and gun laws, so they would conflate these common sporting rifles with actual military-style rifles, such as the similar looking, but functionally different M-16.

This small rebranding has, ever since, made the entire gun control debate little more than a fight between those who swallowed his lies and those who still know better.

I say that to say this: Maryland tobacco laws define “smoking” as: To use or carry any lighted cigar, cigarette, pipe, or other tobacco product of any kind (Article, 2-106(b)(4) and 5-312, Annotated Code of Maryland)

Why does this matter? Because, despite the fact people should be able to smoke outside, in public, anywhere they damn well please, one can at least make the largely mythical, but commonly used argument that second-hand smoking outdoors may possibly be some kind of health risk to those in the immediate vicinity. No one has ever presented any argument or conducted any study that gives any indication that public, outdoor vaping could possibly have any deleterious effects on anyone in any way that could possibly be used to justify a ban under the pretense of “second-hand vaping.” Speaking about this incident as an enforcement of “tobacco use” laws is slippery double-speak meant to conflate the entire issue and should be called out as such. But I digress…

It’s all well and good for them to demand a full investigation and total accountability for this use of force. But that suggests they really haven’t ever fully thought through what that means.

When police act immorally, in a manner outside the bounds of the law, the police are at fault.

When the police act immorally because they are enforcing the law, the police are at fault, as are the lawmakers, activists, and public interest groups who played a role in that law’s passage.

Government is a one-trick pony. The only tools it has at its disposal are coercion. To expect anything other than coercion is inexplicable.

Perhaps these problems aren’t getting any better because police brutality and trampling of our civil liberties is merely the effect of a greater cause. Like legislators and public advocacy groups who pass laws that can only be enforced with violence, yet become incredulous when the violence they voted for is put into action. This will not stop being a problem as long as those proposing and passing legislation continue to miss the forest for the trees. If the government has a monopoly on the use of violence and this is their only mechanism of enforcement, you should not be surprised when the laws you petitioned for are enforced with violence, why would you expect change because you gave some mild rebuke on social media?

If you want to know just how much respect police have for a private citizen publicly asserting their rights and grievances, you need only watch the video that is at the center of this controversy. And when you see officers of the government flagrantly abusing the power they currently have, how does it make sense to call for a government-lead investigation, special councils and more money for increased training and oversight. You are handing greater control and an even blinder trust to the very people who just proved they cannot be trusted with the very thing you are giving.

In fact, MD government released to the press later that day a statement to justify and condone their officer’s use of violence as entirely appropriate. The solution to an over-extended, over-reaching government cannot possibly be more government.

If legislators do want to make a difference they could consider laws overruling cases such as:

  1. Harlow v. Fitzgerald, 457 U.S. 800 (1982)
  2. Malley v. Briggs, 475 U.S. 335 (1986)
  3. Anderson v. Creighton, 483 U.S. 635 (1987)

All of these decisions helped create qualified immunity, a loophole police invariably count on every time people who have been wronged by the police, as the men in this incident were by Maryland Police Officers. You can have all the investigations and special counsel reviews of this behaviors you like and it will not matter when the law not only authorizes them to use violence for something as trivial as public vaping, but guarantees there will be no consequences.

But what officials in Ocean City, as well as all the activists who push to get these kinds of laws passed, appear to miss is that such a scene would not have been possible at all had it not been for the terrible law they put in place. Legislators need to confront the fact that any law on the books has to be enforced with armed agents of the state. As it stands, the state’s purview has grown to encompass stamping out victimless offenses with government sanctioned violence. Like drug use, prostitution, and one of the newest moral panics: vaping. Lawmakers may disagree with those personal choices—some of which may be deleterious to the health of the individual— But perhaps the problem is, we are making this issue a lot more complicated than it possibly needs to be.

If I may suggest a simple standard of conduct for activists and lawmakers, (Bearing in mind that whatever law you are passing will always be carried out by guys with guns) it is not acceptable to submit or pass any legislation—especially when the desired result equates to legislating morality—that sends guys with guns to stop people from engaging in an activity you yourself would not use a gun to stop. Ask yourself, “would I be willing to use a gun to stop someone from vaping outside, in public?”

If your answer to that question is “no” would it not stand to reason that advocating for legislation that sends other people with guns to stop people from vaping in public makes you every bit as culpable for the inevitable violence?

I would humbly submit that those sending the police to do their dirty work as just as culpable as if they were the ones with batons-in-hand.

The ABC’s of PRO

The ABC’s of PRO

Just when you thought our wise overlords in government couldn’t make our economic situation any worse, Joe Biden dares to dream the impossible dream, and endorses legislation to stick it to freelance contractors called: The PRO Act. This is nearly identical to the legislation California’s democratic super-majority pushed through on a State level.

I covered that bill’s causes and effects in both an article and podcast episode called “California Reaming.”

That may be helpful to watch or re-watch, to compare California’s Assembly Bill 5 (or AB5) with Biden’s current PRO act legislation.

As we all know, there’s nothing Democrats care more about than looking out for “the little guy.” It’s precisely that selfless compassion that makes them a better person than the rest of us. But their genuine belief that the important thing is to do something to feel like you are helping, instead of judging their success by a real-world assessment of this kind of legislation’s effects has already proved ruinous to California businesses. There is no reason to expect any difference on a national level, should the PRO Act pass.

In this article, I want to discuss what is known as the ABC test that has been used to apply to judicial scrutiny in places like CA where this law is in effect and is a central feature of the PRO Act as well. This will be followed by a deep dive into the Constitution’s “Contracts Clause” to discuss what this clause means and the myriad ways it relates to modern legislation like AB5 or Pro Act.

California’s bill to regulate the gig economy of freelance contractors… regulate out of existence. Unless, your freelance job is protected by a powerful, well-funded Union, like the truckers union, who have received exemptions. A judge has ruled that truck drivers in California are not subject to Assembly Bill 5 (AB 5), a new gig economy law that seeks to reclassify many contractors as employees. 

The regulations, which went into effect January 1 of 2020, were drafted in response to the case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. Filed by Los Angeles City Attorney Mike Feuer, the landmark court case established a three-pronged “ABC test” to determine if an individual is properly labeled as an employee versus a contractor.

What Is ABC Test

The PRO Act uses an identical ABC test to delineate employers and contractors and is crucial to understand. So precisely what does it entail and how does it function

  1. A contractor must control their workload,
  2. Not perform work within the business’s primary scope of operations,
  3. And be “customarily engaged” in the occupation.

This test constitutes the level of judicial scrutiny applied when a law is challenged. In this case it is done so as a matter of rational basis review. Rational basis review seeks to determine whether a law is “rationally related” to a “legitimate” government interest, whether real or hypothetical.

Companies are trying their level best to circumvent that standard, which would unravel large portions of the gig economy. 

Workers who fail even one leg of this test are considered employees, a status that entitles them to certain benefits and protections while also imposing a long list of regulations on their relationship with their employer. That is, unless you are represented by a powerful union with deep pockets who can get entire industries exempt, despite their legally failing the ABC Test.

Enter Judge William Highberger of the Los Angeles Superior Court. Highberger did not find that truckers specifically pass the ABC test, but that the test itself “clearly run[s] afoul” of federal law. He cites the 1994 Federal Aviation Administration Authorization Act, which stipulates that the “use of non-employee independent contractors (commonly known in the trucking industry as ‘owner-operators’) should apply in all 50 states to increase competition and reduce the cost of trucking services.” At the same time, things are going from bad to worse for ridesharing companies during the coronavirus pandemic. Business is way down, while legal troubles continue to mount.

California AG Xavier Becerra filed a lawsuit against Uber and Lyft. Their complaint accuses the companies of misclassifying their drivers as independent contractors, not employees, in violation of the state’s law.

The lawsuit is the latest flashpoint in rideshare companies’ long battle with state and local governments over what rules should govern their relationship with their drivers.

Tuesday’s lawsuit accuses the two companies of a litany of local and state labor code violations stemming from their alleged misclassification of drivers as independent contractors, including not paying minimum wage, not paying overtime, not offering sick leave and meal breaks, and not paying into the state’s unemployment and disability insurance funds.

Rideshare companies have a strong case against classifying their drivers as employees, which they say would be both incredibly costly and destroy the flexible work arrangements that make these app-based services appealing to many drivers. Bloomberg reports that reclassifying drivers as employees would raise rideshare companies’ costs by as much as 20 percent.

The companies insist that their status as tech firms who only connect drivers and riders, but who don’t tell drivers when or where they have to work, means those offering rides on their platform don’t qualify as employees under the ABC test.

So what about the Constitution’s contract clause

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

-Article I, § X, Clause 1

Article I, Section 10 of the U.S. Constitution contains a list of prohibitions concerning the role of the states in political, monetary, and economic affairs. As the Constitutional Convention was completing its work on prohibiting states from issuing paper money as legal tender, Rufus King of Massachusetts rose to propose “a prohibition on the States to interfere in private contracts.” King relied on a central provision of the Northwest Ordinance:

“[I]n the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.”

The Obligation of Contract Clause thus had its origins in earlier national policy, by extending to the states a prohibition that was already in effect in the Northwest Territory. In the brief debate that followed, George Mason feared the prohibition would prevent the states from establishing time limits on when actions could be brought on state-issued bonds. James Wilson responded that the clause would prevent “retrospective interferences only,” that is, impairment of contracts already made. These comments suggest that the Framers may well have intended to limit states in their impairment of private contracts already made. But the issue is not completely free from doubt. The words “previously formed” were not carried over to the Obligation of Contract Clause, so that the text could read as though it has some prospective application.

The twin protections found in Article I, Section 10 prohibited the state from issuing paper money and, to some extent at least, from regulating economic affairs. That one-two combination troubled the Anti-Federalists, who feared that the two clauses operating in tandem would prevent the states from assisting the debtor classes. The states could no longer debase the currency with new issues of paper tender. In reporting why he had voted against the clause at the Constitutional Convention, Luther Martin asserted that the states would no longer be able “to prevent the wealthy creditor and the monied man from totally destroying the poor though even industrious debtor.” In response to the Anti-Federalists, James Madison declared in The Federalist No. 44 that the Obligation of Contract Clause was essential to “banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.” Debtor relief was regarded as undermining the long-term stability of commercial expectations.

Support for the Obligation of Contract Clause was found in other quarters. In the South Carolina ratifying convention, Charles Pinckney argued that these two limitations on the states would help cement the union by barring the states from discriminating against out-of-state commercial interests. Edmund Randolph, in the Virginia ratifying convention, declared that the Obligation of Contract Clause was essential to enforcing the provision in the peace treaty with Great Britain guaranteeing private British debts.

The Obligation of Contract Clause, therefore, served a double duty: it afforded both a protection to individuals against their states and a limitation on the states that prevented them from intruding on essential federal interests.

In tone, the clause reads as a stern imperative. Unlike the Import-Export Clause (Article I, Section 10, Clause 2) and the Compact Clause (Article I, Section 10, Clause 3), Congress cannot override the prohibition by giving its consent to any state action that violates this provision. The brief terms of the clause, however, cover more than the endless round of debtor-relief statutes the Framers had in mind, for the clause textually covers all types of contracts, not just debt instruments. Further, unlike the Commerce Clause (Article I, Section 8, Clause 3) the Obligation of Contract Clause applies not only to those contracts with interstate connections, but also to all contracts, even local contracts.

What is clear is that in the antebellum period, the Obligation of Contract Clause was the only open-ended federal constitutional guarantee that applied to the states. As such, the Obligation of Contract Clause came by default to be the focal point of litigation for those who sought to protect economic liberties against state intervention. The Supreme Court’s interpretation of the clause, both before and after the Civil War, has been filled with odd turns and strange surprises.

Everyone conceded that the clause applied to ordinary contracts between private persons, including partnerships and corporations. That seemed to be the understanding at the Constitutional Convention. But did the Obligation of Contract Clause also reach actions by the state so as to prevent it from repudiating its own contracts, including those that granted legal title of state-owned lands to private persons, Fletcher v. Peck (1810), or sought to revoke state charters for private colleges, Trustees of Dartmouth College v. Woodward (1819)? In both of these cases, Chief Justice John Marshall opted strongly for the broader reading of the clause in order to restrain conduct by government—reneging on grants—that would be regarded as unacceptable if done by any private individual. In this instance, moreover, the broad reach of the Obligation of Contract Clause uneasily coexisted with the principle of sovereign immunity, which Alexander Hamilton had strongly defended in The Federalist Nos. 81 and 82. That principle prevented the state from being sued for breach of its own ordinary commercial contracts. But that immunity did not allow the state to undo its own contracts once their performance was completed. This reading fits so well with the Framers’ antipathy to corrupt self-dealing as well as the general purpose of limited government that to this day no one has rejected the view that the Obligation of Contract Clause applies to state contracts. But there remains a spirited debate as to how much protection it supplies in light of the doctrine of sovereign immunity.

Certainly much is to be said on behalf of the stability of titles to property obtained in grants from the states. And it has been universally held that the Contracts Clause does not authorize actions for money damages. But we cannot ignore the reciprocal problem: if the Obligation of Contract Clause is read so broadly so as to invite groups to lobby for sweetheart agreements, reformist governments would not be able to set such agreements aside.

Most of the interpretive questions regarding the clause, however, deal with the impact of the Obligation of Contract Clause on the state regulation of private agreements, where the issue of sovereign immunity does not arise. That issue, in turn, is divided into two parts. The first asks whether the Obligation of Contract Clause protects the rights that are vested in private party contracts that are in existence at the time the state legislates a new regulation that could apply to the contract. The second asks whether the Obligation of Contract Clause imposes limitations on the power of the state to regulate contracts not yet established.

The answer to the first question is relatively uncontroversial. The clause must apply to pre-existing contracts, for otherwise it would be a dead letter. Hence, early decisions held that state insolvency laws could not order the discharge of contracts that were formed before the state statute was passed Sturgesv. Crowninshield (1819). The legislature could not flip the background rules of the legal system to the prejudice of individuals who had advanced money on the faith of earlier arrangements. The clause also applied to a wide range of debtor-relief laws, wherein individuals sought to escape or defer the payment of interest, or to avoid foreclosure of their mortgages in hard economic times.

It was, however, one thing to say that the Obligation of Contract Clause applied, and quite another to say that all forms of debtor relief were regarded as beyond the power of the state. Many cases adopted the slippery distinction that the Obligation of Contract Clause preserved the obligation under contract, but did not prevent the state from limiting one or another remedy otherwise available. The result was that small erosions of contract rights came to be accepted, but large deviations were not, even though the clause speaks of all impairments (large or small) in the same breath. Still, in general, the prohibition against state intervention into the substance of existing contracts continues to hold today, unless (as will be discussed later) the state offers some police-power justification for its actions. 

The Supreme Court reached a much more definitive conclusion on the second question in 1827, by holding in Ogden v Saunders (4–3, with Justices John Marshall and Joseph Story dissenting) that the Obligation of Contract Clause did not apply to those contracts that had not been formed as of the date of the passage of the regulatory legislation. In that case, Justice Bushrod Washington, for the majority, made a distinction between laws that affect contracts generally, such as statutes of limitations, and laws that affect the obligation of contracts. In one sense, Justice Washington’s distinction is surely unexceptionable, for it would be odd if a revision of, say, the parol evidence rule in 2000 could not apply to any contracts signed before that date. The rule itself does not bias the case one way or another, but it is intended to improve the overall administration of justice. Individuals typically do not rely on these rules at formation, either. It would be contrary to its original design to read the Obligation of Contract Clause as blocking any improvements in the administration of commercial justice.

By the same token, the broad refusal to apply the Obligation of Contract Clause prospectively could go too far. For example, suppose a state just announced that from this day forward it reserved the right to nullify at will any contracts that were thereafter formed. At that point, it would take only a short generation after passage of this statute to gut the Obligation of Contract Clause making it “mere surplussage,” something that is normally not permitted under standard rules of statutory interpretation. Thus, notwithstanding intimations in the Convention that it only had retroactive application, the courts have interpreted the clause to hold that its prohibitions are prospective but not absolute. The state may alter the rules governing future contracts in ways that offer greater security and stability to contractual obligations. Procedural legislative reforms that arose most frequently in the early debates—a statute of frauds, a statute of limitations, and recording acts—are all measures that meet this standard.

Beyond allowing for procedural changes for future contracts (and modifications of remedy for existing contracts), the Court’s refusal to give the clause any other prospective role opened the way to partisan legislation that limited the ability of some parties to contract without imposing similar restrictions on their economic competitors. In practice, Ogden meant that all general state economic regulation lay outside the scope of constitutional limitation. That gap in the system of constitutional regulation remained until after the Civil War, at which time some protection against state interference with future contracts was supplied under the so-called dormant Commerce Clause (with respect to interstate agreements only) and under the doctrine of liberty of contract as it developed under the Due Process Clause, and, in certain limited cases, under the equal protection clauses. But since Ogden, the Obligation of Contract Clause has been an observer, not a central player, in the constitutional struggle to limit prospective state economic regulation.

The Obligation of Contract Clause continued to have some traction with respect to contracts previously formed, but even in this context, two types of implied limitations on its use were introduced: the just-compensation exception (i.e., the Fifth Amendment’s Takings Clause) and the police-power exception. In principle, the initial question is why any implied terms should be read into any constitutional provision, when no mention of them is made by the Framers. Here the simplest answer is that the logic of individual rights and liberties requires that adjustment. The Constitution thus creates presumptions and leaves it open to interpretation as to how these should be qualified in ways that do not gut the original guarantee.

Consider first the question of property takings with just compensation. Suppose that A buys land from B, which the government then wishes to condemn with payment of just compensation. Surely the government’s right to condemn is not blocked by A’s declaration that he received absolute title to the property from B in a contract that cannot now be impaired by the government. There is, however, a general principle deriving from the common law and Anglo-American constitutional history that the power to take property for public use is “inherent in government,” so that the condemnation can go forward even when a person buys the land from the government. West River Bridge Co. v. Dix (1848). Thus, the Obligation of Contract Clause has to be read subject to a just compensation exception, even though the condemnation can be seen to “impair” the contract right by denying the owner’s right to hold out for an above-market price.

The second set of exceptions to the Obligation of Contract Clause involves the police power. Again, this power is nowhere mentioned explicitly in the Constitution, but it is read in connection with every substantive guarantee that it supplies against the exercise of federal or state power. The customary formulation allows the state to override (without compensation) private rights of property. It should, therefore, do so with ordinary contracts as well. Nonetheless, because no compensation is provided, logically, the class of justifications should be more stringent than the public-use requirement that allows the impairment of contracts with compensation. The canonical formulation defines the state police power as regulation in the name of safety, health, morals, and the general welfare. Stopping contracts to pollute, to bribe, or to fix prices has always been held to fall within the police-power exception.

The New Deal constitutional transformation of 1937, however, expanded the scope of the police power beyond these limited objectives, so that it no longer was possible to distinguish between general welfare and special interests. Home Building & Loan Ass’n v. Blaisdell (1934) vastly multiplied the police-power exceptions to the contractual guarantees offered by the Obligation of Contract Clause, even when no compensation was supplied. The actual decision, dealing with a state-imposed mortgage moratorium, could be explained in part as an effort to counter the ruinous effects of deflationary policies (which in effect increased, in constant dollars, the amount of the debts), but the decision itself was cast in broader terms and unleashed many other legislative initiatives that sought to neutralize the protections secured by individual contracts. Most notably, in Exxon Corp.v. Eagerton (1983), the Court found that a “broad societal interest” was sufficient to justify a decision to prevent a company from asserting its explicit contractual right to pass on any increased severance tax to its consumers.

At present, therefore, it is virtually certain that the Supreme Court will find a police-power justification for any piece of special legislation with interest-group support, thereby gutting the clause insofar as it applies to broad classes of existing contracts. Ironically, however, the Court has remained more suspicious of government’s efforts to use legislation to extricate itself from its own covenants, noting the obvious risk of self-dealing that this behavior represents. It thus struck down efforts of the Port Authority of New York and New Jersey to nullify bond covenants that prohibited it from using bond proceeds to support mass transit. United States Trust Co. v. New Jersey (1977). And in Allied Structural Steel Co. v. Spannaus (1978), the Court refused to allow Minnesota to impose retroactively more-stringent financial obligations on an employer in the winding up of its pension plan. Ironically, the most active use of the contracts clause today is over the unresolved issue of the power of state and local governments unilaterally to restrict pension benefits with public employees, both union and nonunion. Dealing with private contracts, however, the modern age often finds little intellectual respect for freedom of contract or for the sanctity of contracts validly formed. More than any fine point of the law, that initial intellectual predilection explains the lukewarm reception of Obligation of Contract Clause claims in dealing with these private arrangements.

Supreme Court Roundup: The Good, the Bad, and the Ugly

Supreme Court Roundup: The Good, the Bad, and the Ugly

No one likes to admit when they are wrong. Though in this case I will make an exception. In a recent article called “What The Heller?” I lamented that by heavily compromising the originalist analysis of the Second Amendment in the case of District of Columbia v. Heller, 554 U.S. 570 (2008), conservatives may have doomed the amendment to the trash heap of history. At a time when many people were celebrating that this would be the parchment barrier that protected the Second Amendment—which (rather ironically) had failed because it was taken as a self-executing parchment barrier—the Court’s refusal to grant cert on lower court challenges like the recent Ninth Circuit case of Young v. Hawaii that declared there was no evidence an amendment that protected a right to bear arms meant it protected a right to actually bear arms, things looked bleak.

Apart from two dissenting opinions filed by Justice Clarence Thomas lamenting the Court’s consistent denial of cert on every Second Amendment case, the bench has remained silent as lower courts intentionally misread Heller. A livid Justice Thomas included such scathing criticisms as;

“The Supreme Court is treating the second amendment as a second-class right. The court routinely grants review in every case involving free speech, abortion, Fourth Amendment search and seizure. You name it, they are adjudicating on it. Any and every possible provision of the Constitution you please, they will take a case. But they treated the second amendment like a leper, they don’t even want to touch it.”

This all culminated with a growing number of constitutional scholars asking the same question I speculated on in that previous article. Is the Second Amendment a dead letter?

This is one instance where I am pleased to report, I may well have been wrong. Some recent developments have offered a chance for an optimistic view of the future of the Second Amendment. But much like the Heller opinion, that optimism comes with a caveat that should not be overlooked.

Let’s break down several new developments involving the Supreme Court and the future of the Second Amendment, the good, the bad & one ugly truth that cannot afford to be overlooked.

The Good

Last Monday was a very good day for the Constitution. The Supreme Court issued its opinion in the case of Caniglia v. Strom where it struck down warrantless gun seizures. The only thing that could have been better would be to live in a country where we don’t need the Supreme Court to tell the police that stealing firearms from a person’s home without a warrant is unconstitutional. This case began with an incident of Rhode Island police stealing a man’s guns from him home without a warrant after taking him in for a mental health evaluation. The Court struck down this warrantless gun confiscation with a unanimous 9-0 ruling. Specifically they ruled that the “community caretaker exception” to the Fourth Amendment does not extend to the home.

Police generally cannot conduct searches of private property without consent or a warrant.

In Cady v. Dombrowski, the Supreme Court held in 1973 that police may conduct warrantless searches related to “community caretaking functions,” but only for “vehicle accidents.” Since then, the principle has become “a catchall for a wide range of responsibilities that police officers must discharge aside from their criminal enforcement activities,” the First Circuit Court of Appeals stated in the Caniglia case.

The community caretaking doctrine holds that police don’t always operate as law enforcement officials investigating wrongdoing, but sometimes as caretakers to prevent harm in emergency situations.

Edward Caniglia has no criminal history and no record of violence. He had been married to his wife for 22 years when, on Aug. 20, 2015, they had a disagreement inside their Cranston, Rhode Island home. The argument escalated. He produced an unloaded gun and said, “Why don’t you just shoot me and get me out of my misery?”

Worried for his safety, his wife asked police to conduct a welfare check. Edward calmly explained the theatrics of the previous day, and according to the officers on scene he seemed perfectly normal. Still the officer in charge decided that Edward posed a danger to himself and others. He insisted Edward be taken, by ambulance, to a local hospital for a mental health screening. He agreed to go when he was threatened with an arrest and booking if he wouldn’t go to the hospital. The police assured him they had no intention of taking his guns when he left.

As should surprise no one, those police lied. As soon as he left they found and seized his guns. His wife never asked them to remove the guns and when she saw what they were doing she questioned them about why they were being taken. The officers then lied to her as well and told her that before he left, Edward had consented to their confiscation.

What’s more, after illegally seizing the guns, the police never told Edward that they had taken them from the home. When he figured that out and went to get them back the police arbitrarily refused to return the weapons. Caniglia sued, arguing the community caretaking exception shouldn’t apply inside “the home—the most protected of all private spaces.”

The district court ruled against the petitioner and on appeal the First Circuit enjoined the decision and affirmed the legality of the seizure solely on the grounds that the decision to remove both the petitioner and his firearms from the premises fell within the “community caretaking exception.”

If you are anything like me, that last sentence may bear repeating to grasp it’s most troubling assertion: removing the petitioner fell within the “community caretaking exception.”

If the theft of an individual’s firearms is an especially egregious example of over-stepping Fourth Amendment search and seizure protections because firearms have a Second Amendment protection as especially important property because of their role in protecting individuals natural rights of self-defense, is it not more egregious that these same courts are suggesting the community caretaking standard also extends into the home to kidnap the individual in question without an arrest warrant or probable cause that the person has or was in the process of committing a crime? We are talking about an unlawful seizure of the very self that we own firearms to defend.

However, there is plenty to like about this case. That even the three liberal justices were ready to sign onto a ruling that protected our Second Amendment rights, even if that protection is by proxy, is a pleasant surprise.

The Bad

There is an upcoming case that the Second Amendment community has been very excited about, and which even gun rights pessimists like myself see as a potential chance to take a step in the right direction toward expanding the right to keep and bear arms. It would go beyond the right protected in Heller to keep a gun in the home and confirm the right to carry a gun on your person.

This is NYS Rifle & Pistol Association v. Corlett.

But much how like the Heller decision gave us as much to worry about as it did to celebrate, it is already clear from the Court’s petition to grant cert in this case that it may not be the big win for gun rights many are hoping for. To understand why we need to examine the court’s to grant review on a limited question presented:

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

Contrast this with the original question presented (QP) by the petitioner’s attorney, Paul Clement:

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

There are 5 major differences between Clement’s QP and that to which the Court granted review:

First, the Court’s QP focuses on the state’s decision to deny “concealed-carry licenses” to the petitioners. Clement’s QP challenged the law on its face, and as applied. Is the Court’s decision now limited to an as-applied challenge, rather than a facial challenge? Might the Court leave open the possibility that other may-issue regimes are unconstitutional? Are there some unique aspects of the New York law that would distinguish it from other may issue regimes? Is there the possibility the Court will need to remand for further explication of the regime?

Second, the Court’s QP refers to a petitioner that could file an “application.” That category of individuals would seem limited to a natural person. One of the Petitioners is the New York State Rifle & Pistol Club. Is that party a petitioner that could file an “application”? Or will the Court limit relief to the named parties?

Third, the Court’s QP refers to “applications for concealed-carry licenses for self-defense.” Clement’s QP refers to “ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” The Court’s question is far narrower. It only concerns “concealed-carry licenses.” Clement’s petition refers to carrying a gun more broadly outside the home. By stripping the reference to “outside the home,” the Court avoids resolving a thirteen-year old mystery of what exactly are “sensitive places.” (This refers to one of those deviations from Original Public Meaning found in the Heller opinion that left a number of constitutional scholars and Second Amendment advocates rightfully worried about this deviation and it’s potential consequences). Also, the Court’s question would close the door to a claim for open-carry. But why would the Court even consider this issue? New York does not permit open carry. I am nervous this QP is setting up a punt: a remand to consider whether permitting open carry would be consistent with the Second Amendment.

This issue has far more serious ramifications, if it is in fact what the Court is setting up for. We know that Biden is just itching for a reason to pack the Supreme Court. He has assigned a task force to study the matter and I think any reasonably intelligent citizen across the political spectrum would say this is a real possibility in the near future.

Biden has been looking at all kinds of ways to expand gun control. And he has been very open that two issues from the Court warrant a special reason for him to move straight to court packing: gun control and abortion.

In fact, during oral arguments for Caniglia v. Strom on March 24, Biden had Department of Justice lawyer Morgan Ratner testify in support of the city of Cranston’s position, arguing police had to be free to act in particular emergencies.

“Although there have been a lot of questions this morning about whether this is emergency aid or exigent circumstances or community caretaking or something else, the label you give it is not nearly as important as the principle. And the key principle is if someone is at risk of serious harm and it’s reasonable for officials to intervene now, that is enough,” Ratner said.

We now also have this upcoming Second Amendment case he is very much opposed to, as well as the upcoming abortion case that has the potential to seriously limit Roe. If the Court punts once again on this case and gives Biden the time to move onto court packing to preclude any future possability of Second Amendment victories, I would be shocked if the president didn’t take up that de facto invitation. And in a paper from the commission that he assembled to consider court packing, which is now available to read in a recent law review article “The Endgame Of Court-Packing,” we are talking about a 39 Justice Supreme Court. I wish I was exaggerating, but I’m not.

Fourth, Clement’s QP refers to “citizens.” There is no corresponding language in the Court’s QP. Did Justice Sotomayor object to a right that would be limited to citizens? After all, the Second Amendment does not apply to citizens. It refers to the “Right of the people” (Judge Wood adopted that reading of the Second Amendment for the Seventh Circuit). And the Due Process Clause, which the McDonald plurality used for incorporation, refers to persons, not citizens. Yet, Justice Thomas’s controlling McDonald concurrence relied on the Privileges or Immunities Clause, which is limited to citizens.

Fifth, Clement’s QP refers more broadly to “ordinary law-abiding citizens.” Again, there is no similar corresponding language in the Court’s QP. Here, the Court may not have wanted to get involved in the precise basis on the right to carry. What exactly does “ordinary law-abiding” mean? Does that category include non-violent felons? The Court ducked that issue last week.

There is a final, “bonus” concern to be considered, and that is the Court not accepting New York’s phrasing of the QP, which is significantly different:

Whether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.

This leaves me conflicted about the Court’s petition to grant cert in this case. I understand why the gun rights community is excited at the possibilities. I am too. But this uncharacteristic and seemingly illogical restatement of the QP is the first sign that this grant does not auger well for the future of our right to keep and bear arms. The perfect silence since 2008 has left me jaded. We have been burned before. There is a very good chance this will be the last time a nine-member Court decides a Second Amendment case. The only reason to believe Young v Hawaii was not the death knell of the Second Amendment was the timing of this Court to hear this case. If the Court chooses to punt, there can be no doubt that will be the moment that Justice Scalia warned us about shortly before his death—when Heller is “swept into the dustbin of repudiated constitutional principles.”

The Ugly

It is crucial that we citizens who believe in protecting and preserving our Constitution, the republic it founded, and the limited government set forth in it to protect our rights stay informed and active on these issues. Even for the more Rothbardian libertarians who see the U.S. Constitution, as drafted, as a document of over-reaching control, staying active, engaged, and supporting causes within government that will expand our natural rights in any way is still important. I believe libertarians and constitutional conservatives alike can appreciate the Jeffersonian principle of fighting for liberty as a “game of inches” and taking any win we can get is a strategy worth adopting.

But I can’t help thinking the reason we are even in this mess to begin with is because our national consciousness has become infected with a problem I discussed in a past article called “How Supreme Is The Supreme Court?” These are two related concepts known as “Judicial Supremacy” and “Judicial Universality.” These are twentieth century inventions of the Court, largely taken as gospel truth by most Americans. They essentially assert that “a Supreme Court ruling on the Constitution is the supreme law of the land” and that “any Supreme Court decision on any issue is always and immediately binding on not just the parties to the case, but to everyone everywhere.”

The ugly truth is that we find ourselves in this quagmire precisely because those blasphemous doctrines have been seized upon and added to our nation’s civic liturgy. The reason so many Second Amendment advocates continue to be surprised that the Court is constantly failing to uphold our constitutionally protected natural rights is because they believe it is the Supreme Court who they should be turning to to protect our constitutionally protected natural rights. But not only is that not what the Court does, it is not what it was meant to do. Its job is to be an interpreter (an important distinction from being the interpreter) of the meaning of the Constitution. It is not their duty to be the guardian of our natural rights.

We need to stop looking to the Court to tell us what the Second Amendment means and look for ourselves at the language of the Second Amendment to determine what its text means. It’s our responsibility to give meaning to the text and act according to that meaning.

Furthermore, it’s our responsibility to protect our natural rights. Of course we are in the position we are currently in where it seems like every day we are less free to think what we wish, and to say what we think; and more to the subject, we feel as though our ability to defend our lives, liberty, and property are being stripped away. We have been derelict in our duty to look at the First and Second Amendment for ourselves, decide what they mean and live our lives according to that meaning. We rely on nine Judges to rule from on high about how we are able to use our words and our arms to defend our natural rights at our own peril.

The courts cannot be the guardians of our rights when, as experience has shown and common sense dictates, they are the government from which our rights are under threat.

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and host of the Categorical Imperatives Podcast where he discusses current events in law, politics, and culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.

Sedition: An American Virtue

Sedition: An American Virtue

“History never repeats itself, but the Kaleidoscopic combinations of the pictured present often seem to be constructed out of the broken fragments of antique legends.”- Mark Twain

There is a word that has become increasingly popular ever since Trump was elected in 2016. Sedition. And since the January 6th storming of the Capitol, sedition seems to be a word dripping from everyone’s lips. To give some idea of just how much this word is being thrown around, Merriam-Webster’s dictionary reported that on January 6th there was an almost unbelievable 1500% surge in the number of people searching for the definition of “sedition.” The term also spent a good part of the day trending on Twitter.

Since this week marks the anniversary of the passage of the Sedition Act of 1918 it seems an opportune time to look back at the causes and effects of past sedition laws. Especially considering John Brennan had no compunctions about singling out libertarians as a group of people no longer deserving of their civil liberties and since, as this article will show, these laws are always vigorously used to silence people advocating for peace in a time of war. And since no group of people is more consistently anti-war than libertarians, this does not auger well for us.

We will look at the way the Sedition Act of 1918 was used by the courts, discuss why the common belief that this was repealed is a misconception that is at best only partially true, the way it is continuing to be weaponized today in several of the most egregious abuses of power in modern times, and going back to the early days of our Republic to show how the Jeffersonian Republicans so swiftly and successfully made the Alien & Sedition Act of 1798 a nullity. Finally we will discuss why Sedition is one the most American of all values.

The first thing to note is that the Sedition Act of 1918 was not a complete act in and of itself. It was an amendment to the Espionage Act of 1917 that had been passed as a wartime measure that, as the name itself would suggest sought to prevent support of United States enemies during wartime, it did so much more. It had a number of provisions that were more akin to sedition than espionage. Such as any attempt (even indirectly or unintentionally) prohibiting with interference with military operations, recruitment of soldiers or fostering insubordination. The sedition Act was an amendment to section 3 of the espionage act. This broadened the scope of prohibited speech and even expressions of one’s opinion. It forbade the use of “disloyal, profane, scurrilous, or abusive language” about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. Those convicted under the act generally received sentences of imprisonment for five to 20 years.

While many people mistakenly identify the espionage act and the sedition act as separate legislation, thus the repeal of the sedition act in 1920 was a repeal of wartime sedition laws. In fact it was solely a repeal of the expansion of section 3.

The espionage act’s initial provisions which were often tantamount to sedition remain good law to this day.118 U.S.C. ch. 37 (18 U.S.C. § 792 et seq.)

During World War I, the Wilson administration prosecuted war critics under the Espionage Act as a means to silence them. In 1919, the Supreme Court considered the constitutionality of three sedition trials.

Schenck v. United States, 249 U.S. 47

In this case, the defendant circulated literature arguing that the military draft violated the 13th Amendment. Schenck urged people to resist the draft. The Wilson Administration charged him under the Espionage Act with “obstruct[ing] the recruitment and enlistment service of the United States, when the United States was at war with the German Empire.” Schenck argued that the prosecution violated the Free Speech Clause of the First Amendment. Justice Holmes, writing for a unanimous Court, upheld the prosecution. He explained that during “ordinary times,” the Defendant would be permitted to oppose the draft.  However, “the character of every act depends upon the circumstances in which it is done.” Next, Justice Holmes offered a very famous analogy that is often misunderstood.  He wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But notice he referenced “falsely shouting fire in a crowded theater.” It is perfectly okay to shout fire if there is actually a fire. Five decades later, the Supreme Court effectively overturned this standard in Brandenburg v. Ohio, holding that the government cannot “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Finally, Justice Holmes offered another famous test.  “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Here, the circumstances were dire. “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” Therefore, Schenck’s prosecution was constitutional. To this day “clear and present danger” is a memorable phrase. But in the 1920s, it was merely a colorful term for what is known as the “bad tendency” test. That test allowed the government to ban speech if “the natural and probable tendency and effect of a publication are such as are calculated to produce the result condemned by the statute.”  Under this relatively deferential test, the defendant’s criminal intent is inferred from the speech’s tendency to lead to violations of the law.

Five decades later the court effectively overturned this test in Brandenberg v Ohio (1969) holding,

The government cannot forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.

Debs v. United States, 249 U.S. 211,

In the Second case, Debs v United States (1919) Eugene V. Debs was the Socialist candidate for President. He gave a speech advocating for Socialism and declaring the war against Germany was unjustified. He too was prosecuted under the espionage act. Holmes wrote in his opinion, upholding the conviction, that obstruction of lawful government recruiting was not protected speech. Holmes wrote: “Deb’s purpose was to oppose not only war in general, but this wat, and that the opposition was so expressed that it’s natural and intended effect would be to obstruct recruiting.”

Abrams v. United States, 250 U.S. 616

Nine months later in October 1919 the Supreme Court decided Abrams v United States. In this case thee defendants urged factory workers who made munitions for the war to go on strike. The Court upheld the prosecution by a 7-2 vote. The Majority upheld the case because of the similarity this case had to Schenck and Debs.

Justice Clarke wrote,

The manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by brining upon the country the paralysis of a general strike, thereby arresting the production of all war munitions and other things essential to the conduct of the war.

Justice Holmes and Brandeis dissented saying this case did not cross the “Clear and present Danger” test from Schenck and Debs. “It is only the present danger of immediate evil or an attempt to bring it about that warrants Congress in setting a limit to the expressions of opinion where private rights are not concerned.” Holmes questioned whether the defendants even had an intention to interfere with the war effort. “It is evident from the beginning to the end that the only object of the paper was to help Russia and stop American intervention there against the popular government- not to impede the United States in a war it was carrying on.”

Holmes then gave us another memorable phrase in first amendment jurisprudence: “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”

And this law is still persecuting people who have done nothing wrong except tell the truth. This is the act that Julian Assange is charged with violating for daring to operate under an assumption of freedom of the press. This is also the law Edward Snowden has been charged with violating for deciding it might be worth having a public interest debate about whether or not the American people are alright with a rogue security state that are violating just about every principle that once made this a great country.

If a new sedition act is passed it seems safe to assume that it will be passed much as the Sedition Act of 1918 was. As an amendment to the espionage act to broaden its powers. This is why it behooves us to look back to how this act was used in the past. I would especially encourage progressives, who are the people largely calling for new and expanded sedition laws to consider the fact the law passed a hundred years ago was signed by a progressive President, largely upheld by a progressive majority on the Supreme Court and that this law was immediately used against progressives and socialists. If progressives and other political groups who find themselves aligned with libertarians in the particular sense of existing outside the very narrow Overton window of Washington politics, where “acceptable political views” are narrowed exclusively to ideas that do not interfere with corporate agendas and the Military Industrial Complex- do you really believe new sedition laws will only be used to prosecute those on the right you disagree with?

We do have a number things working in our favor at the moment. I think that there is a memory in our national psyche that still vaguely understands sedition laws are dangerous weapons in the hands of insecure politicians. Sedition is the sort of crime weak governments enforce against their citizens when that government is facing an existential threat- or has convinced itself it is facing such a threat. Ironically, this memory may be the reason our insecure politicians are hesitating to pass such a law despite the military occupation of Washington DC showing clearly they believe they really do face an existential threat.

The other advantage is that few things cause as much dissent as the weaponization of laws against speech that is disliked by people in power. This was certainly the case in 1798 during one of the most shameful and nakedly partisan grabs at power in our history. The Alien & Sedition Acts. It also provides us with a great blueprint of how to fight these laws in the form of the Virginia & Kentucky resolutions.

The First Amendment was ratified in 1791. It provides, in part, “Congress shall make no law abridging the freedom of speech.” In this topic, we will study the original meaning of “the freedom of speech.”

In 1798, the Federalist-controlled Congress enacted the Sedition Act. The law made it a crime to,

write, print, utter or publish…any false, scandalous and malicious writing…against the government of the United States . . . with intent to defame the said government…or to bring them…into contempt or disrepute…or to excite against them…the hatred of the good people of the United States…

The Adams administration used the Sedition Act to prosecute its most strident and vicious opponents in the Republican party. At the time, Federalist-appointed judges dominated the federal judiciary. The Republican-controlled legislatures in Virginia and Kentucky issued resolutions declaring that the Sedition Act was unconstitutional.  James Madison is credited with authoring the Virginia Resolution, and Thomas Jefferson is credited with writing the Kentucky Resolution. The Virginia Resolution declared that the Sedition Act is “unconstitutional.” But it did not claim the power to unilaterally “nullify” the Sedition Act. Instead, the Commonwealth enlisted the opinions of other likeminded states. Virginia also stated that the Commonwealth has “the right, and are in duty bound, to interpose for arresting the progress of the evil.” Through “interposition” the state government intervened to assert the rights of its people against the assertion of power by the federal government. “Interpose” was different from “nullification,” though one could favor both interposition and nullification. The Kentucky Resolution, thought to be authored by Vice President Jefferson, did use the term “nullification.” However, it is not clear that the proponents of the Kentucky Resolution believed that a federal law would become nonoperational because one state believed it to be unconstitutional.

Instead, the Resolution authorized a formal protest against the Sedition Act’s unconstitutionality. It provides, in part,

That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact.

In 1800, James Madison wrote a lengthy report that defended the Virginia Resolution from its critics. In his report, Madison explained that there is a difference between when a state declares a law unconstitutional, and when a court declares a law unconstitutional. “The declarations,” by states “are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force.” The Virginia and Kentucky Resolutions illustrate how the Constitution is interpreted outside of the courts. This is an early example of a doctrine whose existence seems to be making a comeback known as “departmentalism.” I spoke about this in another recent piece published by the Libertarian Institute, “How Supreme Is The Supreme Court?

In the election of 1800, Jefferson narrowly defeated Adams, in part due to the controversy surrounding the Sedition Acts. This election came to be known as the “Revolution of 1800.” As President, Jefferson pardoned those who had been convicted and imprisoned under the Sedition Act. In Madison’s report of 1800, he argued that the Sedition Act violated the First Amendment. His discussion illuminates two theories about the original scope of the right of freedom of speech. The first theory, the government cannot impose what is called “prior restraints” on the “freedom of speech.” In other words, people cannot be silenced in advance of speaking. But on this reading of the “freedom of speech.” People can still be punished for their speech after they speak according to the common law. In England, the right of freedom of speech could not be limited through “prior restraints.” We call this first theory the British theory of “freedom of speech.”

The second theory is distinctively American. And it was defended at length by James Madison in his report of 1800. Madison contended that the British conception of the freedom of speech was aimed only at prior restraints by the Crown. It did not limit the powers of Parliament, because, the British Parliament was considered supreme. This principle is called “parliamentary supremacy.” Madison contended that the U.S. Constitution rejected parliamentary supremacy. Under the American theory of popular sovereignty, Congress is also subject to the law of the Constitution—including the First Amendment. Therefore, federal legislation that punishes speech after the fact is also unconstitutional. Indeed, First Amendment begins, “Congress shall make no law…”

Under the American right of freedom of speech, then, it is unconstitutional for the government to constrain the exercise of free expression, both before and after the fact. At the time, the Supreme Court did not rule on the constitutionality of the Sedition Act. But today, the courts have accepted Madison’s interpretation as the original meaning of “freedom of speech.” For example, in New York Times v. Sullivan (1964), the Supreme Court favorably cited Madison and Jefferson’s criticism of the Sedition Act. As Justice Brennan wrote for a unanimous Court: “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”

A wonderful Jefferson anecdote—possibly anecdotal—from B. L. Rayner’s 1832 biography Sketches of the Life, Writings, and Opinions of Thomas Jefferson captures the his commitment to free speech and free press perfectly.

In 1804, the celebrated traveller, Baron Humboldt, called on the President one day, and was received into his office. On taking up one of the public journals which lay upon the table, he was shocked to find its columns teeming with the most wanton abuse and licentious calumnies of the President. He threw it down with indignation, exclaiming, “Why do you not have the fellow hung who dares to write these abominable lies?”

The President smiled at the warmth of the Baron and replied,

“What! hang the guardians of the public morals? No sir,—rather would I protect the spirit of freedom which dictates even that degree of abuse. Put that paper into your pocket, my good friend, carry it with you to Europe, and when you hear anyone doubt the reality of American freedom, show them that paper, and tell them where you found it. Sir, the country where public men are amenable to public opinion; where not only their official measures, but their private morals, are open to the scrutiny and animadversion of every citizen, is more secure from despotism and corruption, than it could be rendered by the wisest code of laws, or best formed constitution. Party spirit may sometimes blacken, and its erroneous opinions may sometimes injure; but, in general, it will prove the best guardian of a pure and wise administration; it will detect and expose vice and corruption, check the encroachments of power, and resist oppression; sir, it is an abler protector of the people’s rights, than arms or laws.”

“But is it not shocking that virtuous characters should be defamed?” replied the Baron.

“Let their actions refute such libels,” continued the President; “believe me, virtue is not long darkened by the clouds of calumny, and the temporary pain which it causes is infinitely overweighed by the safety it insures against degeneracy in the principles and conduct of public functionaries. When a man assumes a public trust, he should consider himself as public property, and justly liable to the inspection and vigilance of public opinion; and the more sensibly he is made to feel his dependence, the less danger will there be of his abuse of power, which is that rock on which good governments, and the people’s rights, have been so often wrecked.”

Continuing with Jefferson, now in a 1786 letter to John Jay, in summation,

Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it…Where the press is free and every man able to read, all is safe. To preserve the freedom of the human mind and freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, and speak as we think, the condition of man will proceed in improvement…

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.

How Supreme is the Supreme Court?

How Supreme is the Supreme Court?

One intriguing aspect of the Covid lockdowns has been the shift in power from an oligarchy whose edicts were often taken to be the supreme law of the land to an empire where a single person now dictates with the same absolute authority. From the nine black-robed Justices ruling from their marble temple to the white lab-coated dictates of Emperor Fauci

How is it that our supposedly representative Republic come under the control of those who are entirely unelected and wholly unanswerable to the people? While it’s easy to pinpoint why and  how this exercise of Supreme power came to be wielded by Dr. Fauci it’s much harder to parse out how, before that The Supreme Court came to replace the Constitution as the Supreme law of the land.

Let’s start by taking a look at Article VI – The Constitution’s Supremacy Clause:

This constitution and laws of the United States which shall be made in pursuance thereof of, and all treaties made, or which shall be made, shall be the supreme law of the land.

So the Constitution is the supreme law of the land. As are all laws and treaties made in pursuance thereof. But what about decision of the Court? Are Supreme Court rulings on the meaning of the law themselves the Supreme Law of the land? When the Supreme Court hands down an opinion, Is that opinion the supreme law of the land? Does a court’s ruling act, functionally as an amendment to the Constitution? If so, when a ruling is overturned does it strike out that amendment? Does judicial supremacy exist?

Answering this question takes us back to one of the most fundamental cases in the entire corpus of American Jurisprudence. 1803 Marbury v Madison. Many people believe it was here, with this case, John Marchall created the idea of Judicial Review, thus giving the Court ultimate authority. But this is not at all the case.

Indeed, a look at the exchange of letters published during the Constitution’s ratification debates between anti-federalist Brutus and Alexander Hamilton, writing as Publius in the Federalist Papers bear this out. Through Brutus’ 11th, 14th and 15th essays and Federalist papers 78, 79, 80 and 81. Which at the time were an actual conservation played out in a New York newspaper. With Brutus 11th essay a direct response to Federalist 78. Federalist 79 a direct response to Brutus 11th essay and so on.

There is a fantastic article about these specific exchange between Brutus & Publius  I recommend:

Slonim, “Federalist No. 78 and Brutus’ Neglected Thesis on Judicial Supremacy.” https://conservancy.umn.edu/handle/11299/170108

For our purposes here, it should suffice to say this principle was regarded as a fundamental part of our system of government from the outset-

Arising from Article III, § 2, Clause 1

The Judicial Power shall extend to all cases in law and equity arising under this Constitution , the laws of the United States and treaties made or which shall be made under their authority.

In brief, Marshall found part of the judiciary act of 1789 unconstitutional. It purported to give the court a right to issue a writ of mandamus in a case where the court is acting in its original jurisdiction. This was inconsistent with the constitutionally limited jurisdiction of the Supreme Court. Who have a duty (judicial duty) to follow the higher law. Constitution over statute. Marbury doesn’t say the court establishes the supreme law or that only judiciary interpret supreme law.

This is not something limited to the Supreme Court, or to the judiciary. Anyone who has ever worked in a government job on either the state or federal level will know that all employees in government have duty to constitution. All state or federal employees. This is in accordance with the Oaths Clause of Article VI, which reads:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….

Like law enforcement, if they pull someone over and want to search their car you must first weigh the constitutionally of those actions. Do you have probable cause as is required by the 4th amendment?

Even a county commissioner deciding whether or not to approve a parade permit should start with first principles. Will the decision to grant or deny that permit be an infringement of the requesting party’s first amendment rights?

All Government officials always have duty to defer to constitution. Each department makes decisions for themselves. This is an established doctrine known as “departmentalism”

Only well into the 20th century did courts begin to write decisions claiming that their decisions are themselves the supreme law of the land

We need to go back to 1954 and the seminal case of Brown v Board of Education.  It’s important to keep in mind that despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. Although its judgments bind the parties before the Court, its precedents are not self-executing for nonparties. The distinction between the Supreme Court’s judgments and precedents is often conflated due to Cooper v. Aaron. This landmark 1958 decision was spurred by the desegregation crisis in Little Rock, Arkansas. Cooper articulated two concepts under which the Supreme Court’s precedents operate as binding judgments on everyone.

First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme Law of the Land.”

Second, Cooper asserted a principle Constitutional lawyer and scholar Josh Blackman has termed Judicial Universality. This doctrine contends that the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other similarly situated parties in later cases. Cooper, which was signed by all nine Justices, represented that these two doctrines were “basic” and premised on “settled doctrine.”

Not so.

Rather, they were novel assertions of judicial power that were and remain entirely inconsistent with how all courts, including the Supreme Court, operate.

At the time nearly two dozen states racially segregated their schools. But Brown only considered the constitutionality of the laws in four of those States: Kansas, South Carolina, Virginia & Delaware. In a unanimous decision The Warren Court found that segregated public schools violated the equal protection clause of the fourteenth amendment. However the Court did not order that all schools nationwide must desegregate immediately. Instead the Court ordered another round of oral arguments to decide how Brown should be implemented

One year later in Brown v Board of Education II (1955) –or simply Brown II – the Justices issued an order to the lower courts in Kansas, South Carolina and Virginia “Enter such orders and decrees as are consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to their cases.” Officials in these three States were now bound by the Supreme Court’s judgement to integrate their schools with “all deliberate speed.” (The Delaware schools had already found that the segregated schools were unlawful.) But what about other States that were not party to Brown? Cooper v Aaron (1958) would resolve this question.

Very often when the courts are deciding issues in a tumultuous time, out of necessity they sometimes reach too far. And in the years since this case the court has somewhat equilibrated.  Certain aspects of that decision they have relied on; certain aspects they haven’t relied on. Cooper defines two different concepts that are often conflated -the judgment of a court and the courts 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, Bill 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 that makes it binding on everyone everywhere.”

That cannot be the case but the Supreme Court’s precedents are controlling for all courts. So when the Little Rock Central High School said ‘I don’t care I’m going to keep segregating my school. I don’t care what the brown ruling said.’ it can be sued. And a state judge or a district judge can bind you, to enjoin you to comply with brown. But that additional step of converting a precedent to a judgment is very important especially in civil rights litigation, though it’s often not very well understood. And the reason many people fail to understand this is because of Cooper v Aaron.

This is due to the two aforementioned concepts that come from Cooper -one is judicial supremacy- the other -judicial universality

This amounts to Smith suing Jones and the final judgment binding Bill. The Court’s unitary opinion in Cooper’ which was signed by all nine justices which is very rare; says these aspects were basic and relied on settled doctrine. This article will endeavor to show that particular aspect of the decision is not correct. These were broad novel and unprecedented assertions of power that are inconsistent with how all courts operate yet five decades later these myths remain.

This all came about as part of a battle against the anti-canonical doctrine of Plessy v Ferguson (1896) While challenges to institutionalized racial segregation can be traced back to the Progressive era of the 1920’s and 1930’s and cases brought by the NAACP that challenged “Separate but Equal” and which laid the foundation for the then proto-doctrine of Substantive Due Process. These early victories are what spurred the School desegregation cases of the 1950’s that, for the first time, sought to take on and overturn Plessy directly.

This is where the modern story of desegregation officially begin with Brown v Board of Education (1954) and It’s the follow up case Brown v Board of Education II (1955) –or simply Brown II–  Which did not purport to desegregate schools immediately, instead Brown II ordered desegregation take place “with all deliberate speed” The idea behind that now famous instruction was they should let the local courts who were on the ground craft mandates and injunctions to deal with each situation as it comes. Brown II applied this to North Carolina & Virginia. And also to Washington DC in the companion case Boling v Sharpe (1954) that dealt with school segregation in Federal law, which was struck down as a violation of the 5th Amendment’s Due Process clause.

So was the Little Rock School District bound by the decision? The simple answer, using our earlier example, when Smith sues Jones, is Bill bound? The answer would be no. As it turns out the Little Rock School board, which was elected, and at the time made up of mostly segregationists, decided they were not going to go along with this unless they were dragged kicking and screaming.

Ultimately, a federal district court in Little Rock issued a desegregation order to integrate the schools, including Little Rock Central High School. Meanwhile, a state court – the Pulaski County Circuit Court – issued an injunction saying don’t integrate the high school.

In effect, we had two different courts within the same jurisdiction issuing two different orders. The federal court was saying integrate; the state court was saying do not integrate. Now, most would assume that, of course, the federal court prevails. But that’s not the case. And nothing in the supremacy clause of the Constitution states that. State courts and federal courts have equal authority to interpret the Constitution.

The conflict though arises when you’re a state official asking yourself “Which court do I listen to?”  If I listen to the federal court the state court might hold me in contempt if I listen to the state court the federal court can hold me in contempt.

Only the U.S. Supreme Court could resolve that kind of tension. This is how the conflict in Little Rock began. Then it got worse as becoming what you might refer to as a game of injunctive whack-a-mole. A district court issued a ruling binding the school board. The governor showed up with the National Guard to block the black children from entering the school. The federal district court issued an injunction against the governor and the National Guard. At that point, the Little Rock Police department, which was not bound by the prior injunction, showed up to keep the black children from entering the school. At this point, we have a crisis because the officials are taking advantage of the distinction between judgment and precedent.

Ultimately, President Eisenhower sent in troops in a very famous scene where they escort the Little Rock nine up the steps to the classroom. Eisenhower was deliberate and very careful in his wording in the executive order he issued, citing the district court ruling and said that was what he was enforcing. He didn’t mention the Supreme Court. In fact, one of the biggest criticisms held in regard to Eisenhower was he never came out in support of Brown.

Eisenhower remained ambivalent toward Brown and never said much about it. But he said he would enforce the district court rulings. Schools could not disregard them. So at that point, students were escorted into the school, By the district court did something that was very much unexpected. It granted a 30-month extension for the integration plan. The judge said that because there was chaos and bedlam and turmoil, he couldn’t allow this integration order to go into effect.

The 8th circuit then reversed that saying that all deliberate speed means now. The 8th circuit stayed its decision then an appeal went to the Supreme Court. We should be careful to remember that with Cooper v Aaron what was at issue were the decisions by the members of the school board. It wasn’t Faubus versus Aaron. (There was another case involving Faubus, this was not it.)

The Supreme Court held that the 30-month extension was not consistent with all deliberate speed. As Chief Justice Warren stated: “Merely having chaos on the ground did not justify two full years of continuing non-integration.” But the Court didn’t stop there; upon review of the opinion of the 8th circuit court, it held that the first 17 pages of the opinion were enough to dispose of this case.

But the Court then moves on to the last two pages of the public opinion, This section answers whether the Arkansas governor was bound to enforce Brown even though he was not a party to that case. And this is where the Court develops the Cooper  myths

First, there is Judicial Supremacy. There is a single sentence in Cooper that sums it up very well. The court says “the interpretation of the 14th amendment enunciated by the court in the Brown case is the supreme law of the land.” That is it’s not just the 14th amendment that’s the supreme law of the land, it’s the Court’s interpretation of that amendment that is itself the supreme law of the land.

The second principle which this article calls Judicial Universality. The best summary for that is found written by Justice Breyer in his book: “Making Democracy Work.”  Breyer wrote: “The court in Cooper actually decided that the constitution obligated other government institutions to follow the Court’s interpretation. Not just in a particular case but in similar cases as well.”

In fact,  neither of these statements can possibly be true. If a simple majority vote in the Supreme Court could be declared the supreme law of the land and the other majority could not change it absent a constitutional amendment. And under our foundational principle of jurisdiction Smith versus Jones- courts can only bind the parties in any given case. The mere fact that the Supreme Court is supreme doesn’t change these facts. Critically, with respect to Judicial Universality, no court since has ever reached these conclusions. And with respect to both principles, no court before has ever reached these conclusions. In fact, the Court’s opinion had virtually no practical effect.

The Little Rock school crisis continued unabated. Immediately after Cooper was decided, the Arkansas governor transferred all the public schools to private charters thereby getting out of the state action doctrine. Private charter schools weren’t bound by the 14th amendment, so for a full year, there were no public schools in Little Rock. What broke this log jam? It wasn’t a court. It was more moderate members being elected to the school board. They then agreed to engage with the reintegration plan.

So despite the Supreme Court’s opinion noble opinion, it had zero effect practical effect.

In the end, the Supreme Court “supremacy” didn’t go very far. In the 5 years after Cooper, districts across the South basically ignored it. Did the Supreme Court Grant Certiorari? Not even once. Despite numerous cert petitions from segregated school districts across the South, the Court wouldn’t take any of those cases. It just looked the other way.

It’s really easy for lawyers in Washington D.C. to sit in their marble palace and issue these opinions. It’s a very different matter putting them into effect

Perhaps the central question is this: could these doctrines be supported by past precedent or does it merely follow from these precedents? At first glance, answering that question might well be mistaken for Judicial Sophistry – But it is much more.

What makes this a very big deal is the Court said these doctrines are basic and well settled. That would imply this issue must have been decided 200 years ago. But what you see with each successive draft is that they move away from these various precedents. Now these precedents confer a rule that we can build upon, one that follows from it. But that’s a very different principle than saying these are well settled.

Among the leading cases are Article VI of The Constitution, which includes the supremacy clause and the oath’s clause, Marbury v Madison (1803), United States v Peters (1809). While Peters is not well known, or oft studied, it was nevertheless a fairly significant case. And a series of cases that have come to be known as the Booth Case – A series of cases beginning with In Re: Booth (1854) out of the Wisconsin Supreme Court and Ableman v Booth (1859) from the U.S. Supreme Court. The Booth case dealt with whether a Wisconsin State Court could issue Habeas to a federal prisoner- that is when someone tried to obstruct the capture of a slave they were thrown in federal custody. Could a state court free a prisoner in Federal court? This was a really important case that no one talks about today. This was Justice Taney’s other major opinion nobody wants to talk about, but is a very big case all the same. The last Is Sterling v Constantin (1932) this is a great Texas case where the governor declares martial law and he basically tries to put limits on the production of oil in his own state. And there was a lawsuit filed in the state in which he stated he was not subject to any Court’s jurisdiction because we were under a state of martial law. It’s a fascinating case –

But none of them stand for the propositions which Cooper cited and the research did suggests that the judges realize this. With each successive draft, the court relied less and less on these precedents. They more or less said, “Well let’s use these rules and build upon them. These changes acknowledged that the court never before claimed such power of supremacy and universality. It was breaking new ground.

Now, the mere fact that they’re breaking new ground doesn’t mean they’re wrong. Very often, courts make new rulings and we can justify them. But these claims were novel, new, not supported, and have not really been used since. This is why these “principles” can safely be called myths. They existed to deal with this exigency, which was unquestionably awful.

But in hindsight, people have gained a little bit of clarity. And as has been mentioned before, ultimately these judgments had virtually no effect on the school districts that did an end-run around these rulings by transferring the schools from public to private charters. At once, this doctrine was laid bare. No court, no matter how high in stature, can force people to accept a judge’s interpretation of the Constitution. The Supreme Court’s authority is, at best, merely persuasive.

The last point worth focusing on is how Cooper has been developed in the last half-century. The court has not shied away from this principle of judicial supremacy. It’s provided in cases such as Powell v McCormack (1969), Baker v Carr (1962), United States v Nixon (1974), to name just a few. But in those cases, there was no meaningful resistance to the court’s interpretation. After the Supreme Court ruled on United States v Nixon, President Nixon turned over the documents and he resigned shortly thereafter.

It was only in slavery and segregation that you found such massive resistance to the Supreme Court’s opinion. Indeed after Cooper was decided people just disregarded it. Despite all best efforts, during my research into this I could not find a single example of the Court using Cooper as a precedent for judicial universality. Not even during the Massive Resistance.

So Justice Breyer, who really encapsulates this theory, can’t really peg down where this doctrine is in Cooper. This lends further credence to calling Cooper a myth. It’s not that it actually says this but I think it’s how people have understood it to be said. In fact, there have been some lower court decisions that have said the opinions issued by U.S. Courts of Appeals are binding on everyone. In other words, if the 9th circuit issues a ruling it binds the government everywhere. This was a Reinhardt opinion.  You have a similar decision in the southern district of New York. Those have not gone anywhere.

But at the bottom, the Supreme Court is still a court and follows the usual rules of a court. Its precedent is persuasive to everyone – state courts and federal courts alike. But its judgments are only binding on the named parties. Stating the principles of judicial supremacy and universality in the absence of antagonism is simple enough. When trying to put them to effect, however, they are exposed as mere myths.

Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and AM host of the “Categorical Imperatives Podcast” where he discuss current events in law, politics & culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.

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