For a long time, I’ve agreed with Justice Breyer that cameras shouldn’t be put in the U.S. Supreme Court. Cameras change things in a qualitative way, in our fame-obsessed culture, and in addition to altering the dynamic of the legal process, I think it would increase the security risk. It would encourage grandstanding, discourage honest questions and answers, and nudge the Supreme Court in the direction that Congress and the Executive Branch have already gone—pushing all substantive proceedings into the background and fostering the development of a stylistic façade. Many find these arguments weak, and they’ve got pretty strong arguments: much of what the Court already does is stylistic façade, they say, and the Court has always done its really substantive proceedings in secret anyway. Still, on this subject, I’ve always tended to traditionalism.
By that I mean, the transcript and recording purport to be accurate descriptions of what was uttered in the courtroom, but prior to being issued, at least one of those records was altered on the orders of Court personnel to delete material that the personnel decided to withhold, and then released without any acknowledgement of alteration. Only later did the Court admit that this had occurred—although the records still lack any acknowledgement of their alteration.
You may think this is a minor matter, and of course the episode itself is rather trivial. The “protestor” is pretty obviously wrong on the substance (Citizens United was clearly correctly decided) and his form of protest was childish, unproductive, and offensive.
Nevertheless, it occurred. It occurred during a hearing and was recorded by the official recorders. The Court’s rewriting of an official government record of proceedings, without acknowledgment of that alteration, is without justification or authority, and the underlying principle is absolutely critical.
[Update: To be clear, the Court's spokesman said the recording had been "redacted." It was not. A redacted document makes clear to the reader that certain parts are withheld. Here, the record was falsified, meaning, altered in a way so as to disguise the fact that material was removed. Redacted would be bad enough. Here the record was secretly altered.].
from James Kirchick. What he says of Stephen Cohen could be said of any number of alleged "realists," as well as those who prioritize nonintervention over liberty in their considerations of foreign policy.
In talking to John Stossel, I mentioned an incident at the Virginia ratification convention in 1788, in the debate between Patrick Henry and James Madison. This debate is an amazing moment in constitutional history and it deserves more attention than it’s received. Historians often focus on the deliberations of the Philadelphia convention, but there was relatively strong consensus there—whereas at Richmond, Henry and his allies, who were some of the most respected names in Virginia and remain giants in American history, brought their considerable talents to bear in opposing the Constitution in toto. Madison—who was a very unimpressive speaker—was forced to rely on sheer force of argument in rebutting their inflammatory and intense arguments. After days of Henry trotting out the terrible dangers of the proposed Constitution, Madison finally came to the last of his many reasons for rejecting Henry’s allegations that Congress would do all sorts of terrible things. Madison had explained why checks and balances and limited powers and other features of the Constitution would limit the mischief that Congress might get up to. Henry, of course, kept saying that Congress might violate the law, which of course is irrefutable—political leaders who are disposed to do so could do any number of awful things. So Madison finally came to his last point:
I have observed, that gentlemen suppose, that the general legislature will do every mischief they possibly can, and that they will omit to do every thing good which they are authorised to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude, that they will as readily do their duty, as deviate from it: Nor do I go on the grounds mentioned by gentlemen on the other side--that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks--no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.
Madison made the same point in Federalist 55. The Constitution’s authors, he said, did not have an overly optimistic view of political leaders, or an unduly pessimistic view. After explaining again the many devices that the Constitution created to protect us against government abuse, he wrote,
[T]o suppose that [various government benefits] would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.
Alexis de Tocqueville sounded the same theme when he wrote that “in the constitutions of all nations, of whatever kind they may be, a certain point exists at which the legislator must have recourse to the good sense and the virtue of his fellow citizens. This point is nearer and more prominent in republics, while it is more remote and more carefully concealed in monarchies; but it always exists somewhere. There is no country in which everything can be provided for by the laws, or in which political institutions can prove a substitute for common sense and public morality.”
Today, people often tell me they’re exasperated at the idea that the Constitution is a safeguard for our liberty, given how often it has been ignored or violated. And that’s a valid concern. But the Constitution is only words on paper—just like a contract, a map, a recipe, a deed, or the Bible. We can ignore what these words mean—but we cannot blame the words on paper for failing to protect us from ourselves. It is up to us to honor the Constitution’s meaning, and we have only ourselves to blame when we fall short. To paraphrase Auden, when we ignore it or dodge its meaning, that’s the way we’re punished by the Constitution.
I mentioned that while liberals like to accuse conservatives (often rightly) of "science denialism," they're just as guilty when it comes to economics: they practice supply and demand denial. They insist that they can somehow escape the basic laws of economics, which say that if you raise the price for something, you're going to get less of it. If you legally raise the price for labor, you're going to get more unemployment. Liberals search in vain for exceptions. They know minimum wages cause unemployment (else why not raise the minimum wage to $1,000/hr?) but prey upon the least educated, least experienced people in our society to make themselves look compassionate. But you cannot help poor people by making their jobs illegal.
Milton Friedman called the minimum wage "the most anti-black law on the books" due to its terrible consequences for black unemployment. He explained that in his classic book, Free to Choose, which is definitely required reading. While you're at it, get Hazlitt's brilliant Economics in One Lesson.
I said that "everywhere you leak, the world hangs a bucket"--by which I meant that anything you don't know is something the government can exploit to take your freedom away. I stole the line from the comedian Gallagher. I have no idea what he meant by it.
I quoted my favorite Christian libertarian, John Milton, from his 1649 book, The Tenure of Kings and Magistrates. Milton said, "None can love freedom heartily, but good men. The rest love not freedom, but license, which never had more scope, or more indulgence than under tyrants. Hence is it, that tyrants are not often offended, nor stand much in doubt of bad men, as being all naturally servile; but in whom virtue and true worth most is eminent, them they fear in earnest."
I said I don't like Joseph Ellis. I explained why in my review of his George Washington biography in the May, 2005 issue of Liberty. You can read that here; my review is on p. 44.
"Because they assume that democracy is our central constitutional value, and deduce jurisprudence from there, today’s lawyers, judges, and law professors—both conservative and liberal—are incapable of advocating a sensible theory of judicial review." I explain at Cato Unbound.
Here is a proposal that I think everyone, regardless of their political views, should be able to support: the right to try.
This proposal would allow terminally ill patients to try medicine or treatments that have been approved for safety, but not for efficacy, by the FDA. It's a sad fact that every year, untold numbers of people die and suffer due to the the FDA's time-consuming, and sometimes politically manipulated, process for approving medical treatments. They should have the right try treatments that might not work--but might save, or at least improve, their lives. It shouldn't be up to government bureaucrats to make these decisions for us. It's not smart, it's not efficient, and it's not compassionate.
As Christina Corieri writes,
Right to Try allows a patient to access investigational medications that have passed basic safety tests without interference by the government when the following conditions are met:
1.) The patient has been diagnosed with a terminal disease; 2.) the patient has considered all available treatment options; 3.) the patient’s doctor has recommended that the investigational drug, device, or biological product represents the patient’s best chance at survival; 4.) the patient or the patient’s guardian has provided informed consent; and 5.) the sponsoring company chooses to make the investigational drug available to patients outside the clinical trial.
For patients suffering from conditions for which there is no approved known cure, the FDA’s traditional role of protecting patients from drugs and devices that have not yet proven effective has little meaning. These medications have already been deemed safe enough to enlarge the group of patients involved in the clinical trial to several hundred or even several thousand individuals. The requirement for informed consent ensures that terminal patients considering this option are fully aware of the risks involved. Moreover, allowing earlier access to investigational medications with informed consent is supported by the medical community. Recent studies show that a clear majority of specialists, including neurologists, oncologists, orthopedic surgeons, and emergency-room doctors support making investigational drugs available prior to full FDA approval. Further, the Right to Try initiative allows the company producing the investigational medication or device to determine whether it will be made available. If a company does not wish to make a medication available due to lack of adequate inventory, fear of liability, or any other reason, the company is not compelled to do so. Furthermore, insurance companies are not compelled to provide coverage for investigational medications. Thus, Right to Try protects a patient’s right to medical autonomy without infringing on a company’s rights.
Sadly, one obstacle in this compassionate, common-sense limitation on government, is the D.C. Circuit's deplorable decision in the Abigail Alliance case, which held that people have no constitutional right to access potentially life-saving medical treatment that the government has chosen not to allow them. That decision was wrong, and demands to be overruled.
I wish the Goldwater Institute the best of luck in getting this reform passed.
Once again, the Obama Administration has announced what is being called a delay in the Employer Mandate provision of Obamacare, this time until conveniently after the 2014 elections. The Treasury Department has said that businesses with fewer than 100 workers now join those with fewer than 50 in getting a form of relief till 2015.
But what relief? These alterations in the deadlines are not, in fact, alterations in the deadlines or any kind of actual change in the rules. These are simply announcements from the Executive Branch that they will not require employers to prove that they're in compliance with the law. That's all. These delays are not exemptions from the rules, or alterations in the rules, but just promises by the nation's chief law enforcement officer that he will ignore lawbreaking during this period of time, in violation of his constitutional obligation to "see that the laws be faithfully executed." And, of course, these delays do nothing to settle the serious questions that will arise in the future about the validity of contracts that arise under the law. There will be such cases: disputes will arise about whether certain contracts were in compliance with the law on day X, and courts will be required to say that those contracts were in violation of the law notwithstanding these alleged extensions.
Whatever you think about Obamacare--if you were for it or against it or whatever--you cannot ignore the enormous damage that is being done to the rule of law by the piecemeal tinkering and manipulation that is being done day after day, time after time. Who knows what the law will be tomorrow? Who can count on what the law will be next week? Or next month? Why bother complying with the law as it is today? Why bother worrying about what it will be next time, since we can just get it changed instead of obeying it? As Christina and I argue in the current issue of Regulation, Obamacare is a sustained assault on the principle of the rule of law and a threatening precedent for the future of our constitutional system.
Sarah Skwire has a fine article here about the role of love in Orwell’s 1984. She rightly notes how Big Brother’s control of ideas and behavior—through Newspeak, the Anti-Sex League, and so forth—create a fundamental loneliness in the totalitarian subject. This is a point that Hannah Arendt also explores in depth in The Origins of Totalitarianism. But Orwell is making an additional point that Arendt never articulates: the essence of totalitarianism is compulsory love.
Totalitarian domination is a mad simulacrum of love. It’s a fantasy in which the subject is supposed to adore the ruler, and the ruler care for the subject. That fantasy is rigidly inculcated and maintained by controlling behavior in an effort to control thought and belief—a duty with which Orwell rightly vests the Ministry of Love. What makes Orwell the most insightful of all critics of totalitarianism is his recognition that the innovation of the Communist and Nazi regimes was that unlike previous tyrannies, here the Parties did not require mere obedience; they did not the mere recitation of Party dogmas. They were not even satisfied to require of their captives mirth. These rulers demanded that subjects love them. They required devotion of the soul, not just compliance with dictates. The subject was expected to marry the state. For Winston and Julie to love each other is therefore suspect, just as loving someone else isn’t allowed to the married. Thinking about someone else, or about other subjects, or just your own personal needs separate from Big Brother’s—these are all betrayals in the same way that a person in love doesn’t do those things.
As I argue in my article “Love and Solipsism,” genuine law actually has much in common with genuine love. It is a form of willing union for the benefit of each and both. The totalitarian tries to mimic this by compulsion. Of course, the compulsory mimic of love is rape, and rape has long been a literary analogue for tyranny. When you’re genuinely in love, devotion, union, and cooperation flow naturally from within. Big Brother forces the subject to do these things from without. That’s why it’s a Ministry of Love—it is responsible for manufacturing love. But since that’s not actually possible, it’s really just manufacturing rape. What happens to Winston Smith in Room 101 is that he is mentally raped—but because he is stripped of his very grasp of reality, there is no truth outside of the “love” for Big Brother that he can cling to for hope, or point to as grounding any distinction between rape and love. At last he learns to love Big Brother because there is absolutely nothing else. 1984 therefore is a sort of love story—the most perverse of all love stories.
This linkage between compulsory love and absolute tyranny has never, to my mind, been better expressed than in the lyrics to R.E.M.’s song “Losing My Religion,” in which the totalitarian subject confesses his secret doubts; Winston Smith’s criminal, private realization that the Party’s angels are fakes wearing toupees.
Oh life, it’s bigger; It’s bigger than you, And you are not me….
But the totalitarian state merges the subject into “the masses.” Self-definition and self-generated purposes are anti-social. You not being me is thoughtcrime.
Oh no, I’ve said too much. I’ve said enough. That’s me in the corner. That’s me in the spotlight, Losing my religion; Trying to keep up with you, And I don’t know if I can do it. Oh no, I’ve said too much. I haven't said enough….
This is the terror of the totalitarian subject who must always think happy thoughts—because he must love Big Brother with “every whisper / of every waking hour.”
Although R.E.M. singer Michael Stipe has said that the song is intended as a “classic obsession pop song,” he’s also compared it to The Police’s “Every Breath You Take,” which members of a certain generation will recall as the musical version of Orwell’s 1984. In the earlier song, the singer has perverted his devotion into a demand for the other’s soul—a demand for love. The singer here is the dictator. But, of course, a person cannot literally be forced to love. You are not me. That indefeasible quality of selfhood that makes it impossible for a person to be forced to love (or in Richard III’s case, for him to force himself to love himself)—is the same indefeasible personal quality that we call the “inalienable” right to life. We cannot alienate our capacity to love—no matter how much Big Brother demands it, and no matter how hard the subject tries to force himself to believe. This is the shameful confession of R.E.M.’s song. There, the singer is realizing he does not actually love Big Brother. The imagery in the song’s video makes the point inescapable.
In a marvelous off-hand comment in his First Treatise, John Locke challenged advocates of absolute monarchy: do monarchs also have the right to eat their subjects? He might just as well have asked whether the ruler also has a right to his subjects’ love. Lucky for him, he could not imagine to what depths tyranny would sink two centuries after his death.
This month's Cato Unbound focuses on the question of "judicial activism" and "judicial restraint." The lead essay is by me, and you can read it here. In the coming weeks, there will be responses by Prof. Kermit Roosevelt III, Sandhya Bathija, and Prof. David R. Upham,
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.