My new book, The Conscience of The Constitution, is now available on Amazon in hardback and Kindle. Although it’s short—only about 150 pages, not counting notes and index—this book is my own manifesto of constitutional law. I address some of the most controversial and important topics in our nation’s legal debates, including substantive due process, judicial activism, and the role of a judge’s political views in interpreting the Constitution.
My previous books have focused on specific issues: private property rights and the freedom to earn a living at a gainful trade. This time, I take a step back to try to take a broader look at the principles that underlie our constitutional structure—and in the process, to cover some things overlooked by many constitutional scholars. For example, I describe how, a century and a half before the American Revolution, a judge in the Massachusetts Bay Colony explained that “due process of law” protects individual rights that aren’t listed in any bill of rights. I tell the story of a little-remembered Pennsylvania judge managed to have his revenge and undo one of the most critical aspects of Reconstruction. I describe how former president and anti-slavery spokesman John Quincy Adams helping to found a school of constitutional thought that within twenty years of his death enshrined in the Constitution the principle of equal protection of the laws.
The idea for the book came to me while I was looking at my wife’s copy of Barry Goldwater’s Conscience of A Conservative. It struck me that the basic controversy in American constitutional law is one of priorities. Today, conservatives and liberals alike rank “democracy” above individual liberty as the central value that the American Constitution is supposed to preserve. Yet the founders themselves saw things differently. Their primary concern was with protecting liberty. The Constitution’s first sentence pronounces that the document was written “to preserve the blessings of liberty”—not to ensure that voting majorities get their way.
We know the importance of liberty to those who wrote the Constitution because of the document they’d written only eleven years earlier: the Declaration of Independence. Although intellectuals today typically regard the Declaration as little more than political propaganda, I believe the Declaration is the basic statement of principles upon which the Constitution itself stands. It declares that all people are fundamentally free, and that government and democracy are created to protect that freedom. Whenever government starts to destroy that freedom instead of protecting it, the people should alter or abolish that government.
The antislavery constitutionalists who built the intellectual foundation for the Fourteenth Amendment saw the Declaration this way—as the polestar for constitutional interpretation. Their triumph in the Civil War over those who thought that the power of the majority should take priority over individual freedom enabled them to amend the Constitution to ensure that the Declaration’s principles could never again be denied by those who read the nation’s basic law. Sadly, in the decades that followed, that hope was betrayed. The revival of legal doctrines that placed the power of the majority first, and denied the fundamental rightness of freedom, gave rise to many of the problems that plague our constitutional law today—including the problem of judges who think that they should defer to legislatures when the Constitution actually demands that they stop lawmakers from taking away our freedom.
Looking at the cover of Goldwater’s book, it struck me that the principle of the primacy of individual liberty—the centrality of freedom as the theme of our Constitution—is the conscience of the Constitution. It is the voice that points out to us the right path when we try to understand this critical legal document. We are free to ignore those principles—but when we do so, we do violence to the legal system we inherited, and we threaten something we ought to preserve for ourselves and our posterity.
The L.A. Daily News has published my and Paul Beard's op-ed on PLF's Obamacare lawsuit. Here's an excerpt
The fiasco of Obamacare’s rollout has finally sparked the nationwide debate that was short-circuited when Congress rushed to pass it in 2009. Back then, Speaker of the House Nancy Pelosi told Americans: “We have to pass the bill so that you can find out what is in it.”
Now, it’s becoming clear that what’s “in it” is hazardous to our health care system, including people’s freedom to choose the doctors and coverage they prefer.
However, Obamacare’s failures are even more fundamental: It was enacted in a way that ignored constitutional procedures and protections.
I mean, I really hate this book. It's brilliantly written; it perfectly captures the sense of anguish, alienation, and disillusionment that many of us experience as teenagers. In that sense, it is a brilliant success as a novel. But I detest it (and its female version, The Bell Jar). As Jessica Roake puts it,Catcher stands for the proposition that "the moody sensitivity of teenagers is actually...the correct reaction to the world." Holden Caulfield's angiush is ultimately presented to us as an end in itself, as a specimen of life. In the anti-hero genre of which it became such a symbol, this naturalistic approach was considered a virtue--and, again, it accomplishes this purpose as brilliantly as any novel ever could, I think. It's a haunting classic that sticks with you. But it sticks with you like a sickening sense of hopelessness in a "world I never made." And that is why it is such a godawful betrayal.
Teenagers don't need to be told that there is phoniness and loneliness and emptiness in the world. They don't need to be told that pain and suffering and unrequited love are commonplaces and that the adults they once looked to for shelter and comfort are often unable or unwilling to help. What teenagers need to be told is that there is something out there that is better and that is possible. They need to be told not to throw away the hero in their souls. They need to be shown, even if just for an instant, a brilliant, sunlit alternative: a world of joy and success and achievement that is within their grasp if they will commit themselves to it. For myself, I found it in The Fountainhead, and in the 25th anniversary introduction Rand wrote for it, she put it beautifully; indeed, it is my favorite thing she ever wrote:
It is not in the nature of man—nor of any living entity—to start out by giving up, by spitting in one’s own face and damning existence; that requires a process of corruption whose rapidity differs from man to man. Some give up at the first touch of pressure; some sell out; some run down by imperceptible degrees and lose their fire, never knowing when or how they lost it. Then all of these vanish in the vast swamp of their elders who tell them persistently that maturity consists of abandoning one’s mind; security, of abandoning one’s values; practicality, of losing self-esteem. Yet a few hold on and move on, knowing that that fire is not to be betrayed, learning how to give it shape, purpose and reality. But whatever their future, at the dawn of their lives, men seek a noble vision of man’s nature and of life’s potential.
And instead, they are handed a copy of Catcher in The Rye, a book that says that when you feel you've run up against a door you cannot open...well, there's nothing on the other side anyway. A book that says that heroism is a sham, and that want, that agony, is really all they can expect. What's most pathetic about this--as Nietzsche, who for all his faults transcended that sense of emptiness, said--is that it's all just so sadly immature. (That sense of bleak disillusionment that you think makes you so sophisticated? It's pathetic. Those of us who have seen the dawn on the other side are secretly laughing at you.)
I hope young, beautiful souls, many of them teetering on the edges of their future personalities, find something like what I found in The Fountainhead. I don't know if Black Swan Green is like this; if it does as Roake says it does. She says "while Catcher in the Rye is, in many ways, the story of a breakdown, Black Swan Green is truly a coming-of-age novel, the story of a young writer’s ascendance. Jason discovers the power and the comfort of words, and is saved through his ability to make sense of his world through writing." I hope that's true.
...was to force insurance companies to insure you despite "pre-existing conditions." Yet now the news is that the government will impose a "tobacco surcharge" if you smoke. Isn't that just like an insurance company turning you away if you're sick? The reason for excluding people with pre-existing conditions is because it makes no economic sense to insure people after the thing you're insuring them for has occurred. So insurance companies either charge more to people who engage in risky behavior or refuse to insure them entirely. This is a good thing, since it discourages risky behavior, but still allows people to choose it if they prefer--and doesn't force me to pay for someone else's bad habits. And it leaves insurance companies free to create different kinds of policies that insure greater categories of risk. This is the operation of supply and demand that leads to better quality products at low prices and which respects people's freedom to choose.
But in the run up to Obamacare, that was declared "discrimination" and wrong. Instead, insurance companies were supposed to just pay for treatment whenever you got sick, regardless of your circumstances. And because the laws of economics meant that such a requirement would bankrupt the insurance companies, we'd help subsidize the companies by forcing healthy people to buy insurance that they don't need.
Now, among Obamacare's many other failures, the government is going to allow insurance companies to charge people more if they smoke. Maybe that's a good idea--smoking's a bad idea, and we should discourage it...but isn't this just the same thing that we were supposed to eliminate? Isn't the government now engaged in exactly the same discrimination that we denounced three years ago? If they can charge more for smoking, what about being fat? What about driving unsafely? What about having cancer or heart disease?
We haven't eliminated the insurers' ability to deny or charge more to people with preexisting conditions--we've just transferred that ability to the government. With the result that we won't be able to shop elsewhere and create the kind of economic pressure that might otherwise lead insurance companies to innovate and devise alternatives.
This is the progression of every government program. Step one: offer people "free" widgets, paid for by taxpayer money. Step two: everyone goes out and gets too many widgets and drains the government treasury. Therefore, Step three: the government starts telling you what kinds of widgets you can get and why. And by that process, your access to widgets comes to depend on the decisions of the bureaucracy.
Amazing. The Obama Administration has decided to temporarily "fix" the mess they've made--by simply withholding enforcement of the law they championed. That is to say, by allowing people to break the law. Again. I mean, that's what happened with the Employer Mandate, also: it wasn't "delayed," as the news stories put it. What happened was that the Administration simply instructed administrative agencies not to enforce the law's requirements.
As Christina and I observe in an article coming in the next issue of Regulation, this sort of behavior indicates a profound failing with Obamacare: one that runs much deeper than the policy problems that have been the focus of recent debates. From its unconstitutional origin, to the rewrite that the Roberts Court put on the law, to the unconstitutional delegation of lawmaking power to unelected, independent bureaucrats, to the halting and unpredictable manner in which it is being enforced or not--depending on political pressure--Obamacare has been a sustained assault on the concept of the rule of law itself.
I know everyone knows this already, but Tom Goldstein is the best Supreme Court oral advocate. Absolutely amazing. His presentation in Walden v. Fiore is a great example. He's under heavy questioning, the judges appear very skeptical of his position, but he is ontarget; calm, absolutely knowledgeable; his answers are direct; to the point; succinct; helpful. It is instruction and clarification rather than harangue. Any young lawyers out there looking for guidance on how an oral argument should go should listen to it and to his other arguments. They are (shall we say?) the Goldstein Standard for oral advocacy.
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.