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.
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.