This is an astonishing story. Earlier this month, the Goldwater Institute filed a lawsuit against Coconino County, Arizona (that’s Flagstaff) because poll workers refused to allow a woman to vote who had worn a “tea party” t-shirt to the polling place. The officials claimed that the t-shirt was “electioneering” in violation of state law. That’s absurd enough, but when shortly after the lawsuit was announced, officials with the Maricopa County Elections Department announced that they would forbid people from wearing t-shirts with the Gadsden Flag or other American Revolutionary apparel! As this reporter notes, elections officials say that the Gadsden Flag “will be considered political and partisan,” and therefore violates the electioneering law—and if a person wears such a t-shirt, “[a] polling place worker will fill out an ‘event report’ that includes the voter’s name and voter ID number. Osborne can then use that information to follow up on the incident at a later date.”
How exactly is this not an attempt by the county to “intimidate, threaten, or coerce…any person for voting or attempting to vote” under the Voting Rights Act? The county has no legitimate purpose here; it’s absurd to suggest that the wearing of a flag shirt is corrupting to the electoral process or intimidates other voters, and as the Sixth Circuit explained in Anderson v. Spear, 356 F.3d 651, 661-62 (6th Cir. 2004), when striking down a state law that prohibited all electioneering speech within a certain distance of a polling place, “[Supreme Court precedent] permits states to create buffer zones around polling places for two purposes only: the prevention of voter intimidation and the prevention of corruption. Kentucky’s own witnesses make clear that the extreme geographic distance was not selected for these permissible purposes, but was intended to prevent voters from being bothered by constitutionally protected speech. This [the First Amendment] does not permit.” The county’s policy cannot be rationally defended as an attempt to provide a fair process—all it does is deter a certain segment of the voting public from showing up
The Texas Supreme Court has cited Spock in a decision, for the proposition that the needs of the many outweigh the needs of the one. What's curious is that the whole point of the Spock trilogy is that Spock is wrong about this--which is made clear at the end of Search for Spock, when Kirk says, "The needs of the one outweigh the needs of the many."
This week, I traveled to Massachusetts, Connecticut, and Maine for talks to promote my book, and had a little time for sight-seeing on the way. Fall in New England is famously beautiful, and I'm also very fond of New England cemeteries, so I wasn't so displeased to get lost and find myself in Amesbury, Massachusetts, where I happened across Union Cemetery. I already blogged about Ezekiel Goodridge, who died at the glorious Battle of Saratoga, but I also found some other very picturesque sights.
In memory of Lieut. Ezekiel Goodridge who was killed at the capture of Burgoyne Oct 7, 1777 Aet 37 and of Molly his wife who died March 29, 1814. Aet 65. and of 6 of their children Elizabeth died Mar. 1. 1778 Aet [sic] Ezekiel died Sep. 13, 1777 Aet. 11 in memory of Molly died March 9 1777 Aet 3. Nancy died Aug 16. 1778 Aet. 16. Abigail died Nov. 1786 Aet 14.
"One of the queerest things I know of, is to hear tourists from 'the States' go into ecstasies over the loveliness of 'ever-blooming California.' And they always do go into that sort of ecstasies. But perhaps they would modify them if they knew how old Californians, with the memory full upon them of the dust-covered and questionable summer greens of Californian 'verdure,' stand astonished, and filled with worshipping admiration, in the presence of the lavish richness, the brilliant green, the infinite freshness, the spend-thrift variety of form and species and foliage that make an Eastern landscape a vision of Paradise itself. The idea of a man falling into raptures over grave and sombre California, when that man has seen New England's meadow-expanses and her maples, oaks and cathedral windowed elms decked in summer attire, or the opaline splendors of autumn descending upon her forests, comes very near being funny--would be, in fact, but that it is so pathetic. No land with an unvarying climate can be very beautiful." --Mark Twain, Roughing It
I'm very grateful for David Kopel's kind words, and I, in turn, am a great admirer of his work and of the Independence Institute. I'm glad to think I may have misunderstood his comment about the Supreme Court having not explained how "substantive due process" is derived from the Constitution. Yet I think I don't quite understand Kopel's explanation of his point. He writes,
yes, “due process of law,” in a textualist sense, can require judicial action against even laws which may have been enacted under proper procedures, such as special legislation (e.g., taking property from X to give it Y). And, quite obviously, this traditional view of “due process of law,” summarized in Hurtardo, has very little to do with “the doctrine of substantive due process.” The former, text-based view, condemns special legislation; yet you can’t use the modern Supreme Court’s “doctrine of substantive due process” to attack a congressional statute that was enacted for the obvious benefit of one corporation, whereas such a challenge might be plausible under the “due process of law” principle of Hurtado.
This appears to be an attempt to distinguish the theory articulated in Loan Ass'n and Hurtado from "the doctrine of substantive due process." What's confusing is that these are, in fact, the same thing. It's true that certain modern accretions on substantive due process, such as "rational basis" certainly are wrong (lacking any foundation in the Constitution, the views of the framers, or any logical theory of law) but these aren't "the doctrine of substantive due process"--they're the theory of rational basis. Indeed, rational basis and deference to legislatures and the abandonment of natural rights--these things are the opposite of substantive due process; constructions by reactionaries against the protection of individual rights under the due process clause. The difference between modern due process cases and nineteenth century due process cases is that the modern cases are overly deferential.
Kopel writes that the distinction between substantive due process in the style of Hurtado, of which he approves, and "the doctrine if substantive due process" of which he doesn't approve is: "selective incorporation, unenumerated substantive rights such as those in Meyer v. Nebraska and Roe v. Wade, and so on." It is these that he says the Supreme Court has never even "attempt[ed]" to "derive" from the text.
But this is, again, not true. The concept of selective incorporation was thoroughly explained in many decisions--perhaps unconvincingly, but explained, nevertheless. Justices Frankfurter and Black strongly disagreed over the nature if incorporation and wrote about their disagreements in many opinions, which you can look up on Wikipedia. But clearer than these was the 1908 case Twining v. New Jersey, when the Court explained, echoing Hurtado, that some traditional legal practices are so deeply ingrained in the common law that for a defendant to be denied those practices would be essentially arbitrary, thus amounting to a violation of the due process of law requirement:
Is [the asserted right] a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government? If it is, and if it is of a nature that pertains to process of law, this court has declared it to be essential to due process of law.... [In] a free representative government nothing is more fundamental than the right of the people, through their appointed servants, to govern themselves in accordance with their own will, except so far as they have restrained themselves by constitutional limits specifically established, and that, in our peculiar dual form of government, nothing is more fundamental than the full power of the state to order its own affairs and govern its own people, except so far as the Federal Constitution, expressly or by fair implication, has withdrawn that power.... We are not invested with the jurisdiction to pass upon the expediency, wisdom, or justice of the laws of the states as declared by their courts, but only to determine their conformity with the Federal Constitution.... The question before us is the meaning of a constitutional provision which forbids the states to deny to any person due process of law. In the decision of this question we have the authority to take into account only those fundamental rights which are expressed in that provision; not the rights fundamental in citizenship, state or national, for they are secured otherwise; but the rights fundamental in due process, and therefore an essential part of it. We have to consider whether the right is so fundamental in due process that a refusal of the right is a denial of due process. One aid to the solution of the question is to inquire how the right was rated during the time when the meaning of due process was in a formative state, and before it was incorporated in American constitutional law. Did those who then were formulating and insisting upon the rights of the people entertain the view that the right was so fundamental that there could be no due process without it?
If you find this unconvincing, that's fine. But it's certainly an attempt at an explanation of selective incorporation. And I, for one, do find it convincing. The Fourteenth Amendment does not say every state must provide a jury of twelve for all criminal offenses, who must reach a unanimous verdict. Is that rule so central to the common law tradition that states are barred from changing it--allowing non-unanimous verdicts, for instance, or allowing plea bargaining? Would we regard such innovations as shockingly lawless? Probably not. Thus a unanimous-twelve jury isn't required from states under the language "nor shall any state deprive any person of life, liberty, or property, without due process of law." Due process bars arbitrary legislative actions. It doesn't explicitly refer to any particular right, the way the Second Amendment does. The Twining approach therefore does make sense: states may change certain legal boundaries without stepping over the line into arbitrariness.
It is also not true that the Supreme Court has failed to derive the protection of unenumerated rights from the text. But, again, the anachronistic term "substantive due process" misleads us. In Meyer, the Court was not actually talking about the "due process" clause--it was referring to a different word in the Fourteenth Amendment: "liberty." The Court said,
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746; Yick Wo v. Hopkins, 118 U.S. 356; Minnesota v. Barber, 136 U.S. 313; Allgeyer v. Louisiana, 165 U.S. 578; Lochner v. New York, 198 U.S. 45; Twining v. New Jersey, 211 U.S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U.S. 549; Truax v. Raich, 239 U.S. 33; Adams v. Tanner, 244 U.S. 590; New York Life Ins. Co. v. Dodge, 246 U.S. 357; Truax v. Corrigan, 257 U.S. 312; Adkins v. Children's Hospital, 261 U.S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.
Again, disagree with Meyer if you like, but this is plain vanilla substantive due process, very firmly rooted not only in reason and the nature of the thing, but also on a long string of precedent. The Court is saying here that the word "liberty" protects an undefinable range of freedom that includes the freedom to do certain things that are not specifically identified in the Constitution's language--which is, in fact, what the word liberty actually means, linguistically and as a matter of (centuries of) precedent.
I therefore must stand by my original statement. It is not true that the Supreme Court has never derived the doctrine of substantive due process--or substantive due process, if there is any possible distinction between these two things--from the Constitution's language; in fact, it has done so time and time and time again.
If we tried to start Home Depot today, under the kind of onerous regulatory controls that you have advocated, it's a stone cold certainty that our business would never get off the ground, much less thrive. Rules against providing stock options would have prevented us from incentivizing worthy employees in the start-up phase—never mind the incredibly high cost of regulatory compliance overall and mandatory health insurance. Still worse are the ever-rapacious trial lawyers.
Meantime, you seem obsessed with repealing tax cuts for "millionaires and billionaires." Contrary to what you might assume, I didn't start with any advantages and neither did most of the successful people I know. I am the grandson of immigrants who came to this country seeking basic economic and personal liberty. My parents worked tirelessly to build on that opportunity. My first job was as a day laborer on the construction of the Long Island Expressway more than 50 years ago. The wealth that was created by my investments wasn't put into a giant swimming pool as so many elected demagogues seem to imagine. Instead it benefitted our employees, their families and our community at large.
I stand behind no one in my enthusiasm and dedication to improving our society and especially our health care. It's worth adding that it makes little sense to send Treasury checks to high net-worth people in the form of Social Security. That includes you, me and scores of members of Congress. Why not cut through that red tape, Mr. President, and apply a basic means test to that program? Just make sure that money actually reduces federal spending and isn't simply shifted elsewhere. I guarantee you that many millionaires and billionaires will gladly forego it—as my wife and I already do when we forward those checks each month to charity.
It's not too late to include the voices of experienced business people in your efforts, small business owners in particular. Americans would be right to wonder why you haven't already.