Freespace

John Marshall's "reluctance" versus the Dogma of Deference

Some conservatives have once again taken up the defense of “judicial restraint,” or as I call it, the Dogma of Deference. They’re responding to libertarians such as Randy Barnett, Damon Root, Evan Bernick, and myself, who have argued that the Dogma finds no support in the Constitution, and is actually a Progressive construct which in practice leads to expanding government and narrowing individual rights in a way contrary to the Constitution’s text and philosophical foundations. Most recently, Carson Holloway at National Review’s Bench Memos argues that judicial restraint is rooted in the views of the founding era, and particularly John Marshall.

1. Marshall’s “reluctance” versus the Dogma of Deference

Of course it’s true that Marshall regarded the idea of courts declaring a law unconstitutional to be a “painful duty,” and he said he would presume that lawmakers were attentive to their constitutional obligations when passing laws. But there is a crucial difference between this respect for the other branches of government and the Dogma of Deference which was fashioned by Progressives and which today dominates the judicial system. The latter is a general theory of constitutional government—as opposed to Marshall’s pragmatic, rebuttable presumption of respect for a coordinate branch. The Dogma holds that judicial acts which frustrate the will of elected officials or their administrative hirelings lack legitimacy—that they present a “countermajoritarian difficulty.” To Marshall and his contemporaries, by contrast, there was no such “difficulty,” and judicial intervention was seen not as an essentially antidemocratic act, but on the contrary as simultaneously (1) justified by higher criteria than majoritarianism and (2) fundamentally more democratic than even a legislative act.

John Singer Sargent's Lady Agnew of Lochnaw

My very favorite painting. Looking forward to seeing it in San Francisco next week. Here's a very nice introduction to the painting by Sargent expert Richard Ormond.

Sargent painted this in a half-dozen sittings with no preliminary drawings. Just painted it.

Upcoming talks in CA, NYC, Vegas & DC

I'll be speaking at the NYU Federalist Society on April 9 about The Conscience of The Constitution, and on the same subject on April 15, I'll be speaking to the Silicon Valley Republican Women in San Jose, California.  On May 19, I'll be speaking to the Rossmoor Republican Club in Rossmoor, California. On May 30, I'll be speaking at the LPEX Conference in Las Vegas.

Also, in September, I'll be speaking at the Cato Institute's annual Constitution Day Conference.

Why does the left get so angry?

Robert Tracinski has some thoughts on why leftists get so mad and so personal in political disagreements. Although I think he gives conservatives a tad more credit than they deserve, I generally agree with his points. But I think it's not just that their hoped-for Revolution depends on other people--it's that their whole reality depends on other people. They think that the evil in the world is the result of social structures (everything in the world is the result of social structures) that are ultimately within our control if only we'll exercise sufficient will power. Yes we can! sounds inspiring, only until it turns into Why won't you?! And it always does.

For example, crime or discrimination are the result, for the leftist, of institutions, not spontaneous orders, and therefore are caused by somebody's sin. If you don't act to change things, therefore, you're part of the problem. Poverty? We can cure it by raising the minimum wage. Because poverty is caused by greedy people being stingy. And if you oppose us, you're helping cause poverty!

Yet in reality, many of these problems, including poverty, are not caused by design, but are the consequences of nature or spontaneous orders. If you think the laws of economics are not natural laws but the result of human consciousness, then, you're unable to distinguish between those things that can be cured by conscious acts, and those that can't. And this, in turn, affects your thinking about justice. It leads you to think natural things can be unjust--that inequality is per se unjust. If you think that way, you'll soon think you live in a world that is absolutely saturated, through and through, with injustice and unjust people who are basically only making things worse all the time. How could you not go through life furious with indignation?

If you're ignorant about economics, for example, and don't know how prices work as an informational system in a spontaneous order, then you'll think that the reason things are expensive is just because greedy people put big price tags on their stuff. If they weren't greedy, they'd charge less. And that greed makes people poor! It's all the result of evil people doing evil things. If you're ignorant about socio-biology (or just refuse to believe it) then you think the reason women are on average less likely to occupy management positions and earn the same as men is because of evil sexist corporate managers making anti-women choices. If you're ignorant about justice and think inequality or unfairness are the same thing as injustice, then you're going to think that nature itself is unjust, since nature distributes her gifts unequally. If you go through life believing that reality is ultimately about other people instead of being ultimately about your interaction with nature, then you're going to think all the bad stuff is ultimately caused by other people, and that's going to make you hate other people, even while you profess to love humanity in the abstract.

Left political thinking is, largely, ultimately a conspiracy theory. The institution of private property, for example, was decided by exploitative elitist a as a tool for exploiting the workers and monopolizing the social surplus. The rest of capitalism flows from a consciousness rooted in this greedy design, and devoted to perpetuating it. People either know this and are consciously aiding in it, or they're dupes who need to be educated and mobilized. Well, if you think politics is ultimately a conspiracy of the evil Koch Brothers against the People's True Path to equality, then naturally you're going to be angry.

Obviously this doesn't mean that leftists are wrong to think there are a lot of injustices in the world, or that injustices are often caused by evil choices or failure to act. Everyone rightly recognizes that there's plenty of bad stuff out there we could do more to fix. But this basic leftist premise--what Rand called "social metaphysics" or "second-handedness"--this idea that reality is ultimately about people's acts, not about nature--is what makes the difference. It's the reason, ultimately, for the long leftist tradition of exhortation for revolution--as opposed to the right, which typically focuses on the bourgeois virtues of going out and getting a job and pursuing happiness. As Martin Malia writes, there really is no such thing as socialism to compare with capitalism. There's just capitalism versus some vague anti-property rights, anti-free exchange abstraction of the ideal. Your goal as a leftist, then, is ultimately the transformation of all of actual society into something equal and fair, but since this is impossible and even meaningless, it's a perpetual exercise in futility. The leftist, understandably given his basic assumptions, assumes that this failure is caused by lack of faith. Yes we can! so Why haven't we?! Because we're evil, that's why.

Byron on Greek independence

As today is Greek Independence Day, a quotation from Byron's Childe Harold's Pilgrimmage, originally addressed to the Greeks, in whose independence struggle Byron himself was killed:

Fair Greece! sad relic of departed worth!
Immortal, though no more; though fallen, great!
Who now shall lead thy scattered children forth,
And long accustomed bondage uncreate?
Not such thy sons who whilome did await,
The hopeless warriors of a willing doom,
In bleak Thermopylae's sepulchral strait—
Oh, who that gallant spirit shall resume,
Leap from Eurotas' banks, and call thee from the tomb?

Spirit of Freedom! when on Phyle's brow
Thou sat'st with Thrasybulus and his train,
Couldst thou forbode the dismal hour which now
Dims the green beauties of thine Attic plain?
Not thirty tyrants now enforce the chain,
But every carle can lord it o'er thy land;
Nor rise thy sons, but idly rail in vain,
Trembling beneath the scourge of Turkish hand,
From birth till death enslaved; in word, in deed, unmanned.

In all save form alone, how changed! and who
That marks the fire still sparkling in each eye,
Who would but deem their bosom burned anew
With thy unquenched beam, lost Liberty!
And many dream withal the hour is nigh
That gives them back their fathers' heritage:
For foreign arms and aid they fondly sigh,
Nor solely dare encounter hostile rage,
Or tear their name defiled from Slavery's mournful page.

Hereditary bondsmen! know ye not
Who would be free themselves must strike the blow?
By their right arms the conquest must be wrought?
Will Gaul or Muscovite redress ye? No!
True, they may lay your proud despoilers low,
But not for you will Freedom's altars flame.
Shades of the Helots! triumph o'er your foe:
Greece! change thy lords, thy state is still the same;
Thy glorious day is o'er, but not thy years of shame.

The city won for Allah from the Giaour,
The Giaour from Othman's race again may wrest;
And the Serai's impenetrable tower
Receive the fiery Frank, her former guest;
Or Wahab's rebel brood, who dared divest
The Prophet's tomb of all its pious spoil,
May wind their path of blood along the West;
But ne'er will Freedom seek this fated soil,
But slave succeed to slave through years of endless toil.

Surprisingly timely today. Incidentally, Frederick Douglass used the line "Hereditary bondsmen! know ye not / Who would be free themselves must strike the blow?" as his personal motto all his life.

Talking with Armstrong & Getty tomorrow at 7

I'll be on air with A&G tomorrow at 7 Pacific to discuss some interesting Supreme Court arguments this week, including the case about whether the states can restrict what organizations may put their symbols on license plates.

You can listen online here.

Update: If you missed it, you can listen here.

State ‘competitor's veto’ laws and the right to earn a living: some paths to federal reform

The Mercatus Center has published my paper on Competitor’s Veto laws—laws that force you to get permission from your own competition before you’re allowed to start a business—and how the federal government could protect people from such violations of their constitutional right to earn a living. My paper describes in detail the evidence unearthed in our recent lawsuits against Kentucky and Missouri on behalf of entrepreneurs who were unfairly denied their right to start businesses, because government officials thought there was no need for more competition.

These Competitor’s Veto laws are on the books in most states, sorry to say. Yet although economists have written at length about the economic theory involved, and have discussed the effects these laws have on consumers (they raise the cost of living by blocking free competition), it appears that nobody’s ever provided empirical research on how these laws work to block would-be business owners from the marketplace. The evidence we unearthed in litigation shows that—just as public choice theory predicts—they work exclusively to protect established businesses with zero benefits for the general public.

In the conclusion, I offer three options for federal reform. First, civil rights legislation expressly targeted at protecting economic liberty against state interference. Second, spending clause legislation that would condition federal grants for job training and education programs on the states reining in their abusive licensing laws, and third, legislation to make it easier for the FTC to bring antitrust cases against state licensing boards, as in the recent Supreme Court decision, North Carolina Board of Dental Examiners v. FTC.

You can read the whole paper here. It will also be published in the forthcoming issue of the Harvard Journal of Law & Public Policy. My thanks to the Mercatus Center for inviting me to participate.

(Cross-posted at PLF Liberty Blog)

My latest artistic discovery

Descending Night by Adolph Alexander Weinman, designed for the Pan-Pacific International Exposition.

Its companion piece, Rising Day:

Man, I love the beaux arts style.

Bork and Bolt: a misquotation for all seasons

The late Robert Bork was the guru of the conservative theory of “judicial restraint.” He wasn’t its originator; that theory traces back to the Progressive era. But it was Bork who taught it to conservatives and became the leading spokesman for the idea that “judicial activism” was a major structural problem of the liberal political machine. But he did not merely argue that courts were doing something unduly extreme. Rather, in his view, the very institution of judicial review was a usurpation. In The Tempting of America, he argued that Marbury v. Madison, often mistakenly called the origin of the courts’ power to declare laws unconstitutional, was wrongly decided, and that courts should not have this power at all.

This was a very remarkable argument, since even such extreme spokesmen for judicial restraint as Oliver Wendell Holmes recognized that the principle of judicial review is part of our Constitution. Yet Bork criticized Holmes for this, arguing that he hadn’t gone far enough in his Lochner dissent, because he’d still said that there might be some laws so arbitrary and unjustified as to exceed the legitimate powers of legislatures. Holmes, the godfather of “judicial restraint” if there ever was one, wasn’t restrained enough for Bork.

Even more remarkably, Bork claimed to base his anti-judicial review position on “original intent,” even though the authors of the Constitution made clear that they understood and meant to incorporate judicial review into the fundamental law. It’s mentioned in The Federalist. Madison discussed it in his speech introducing the Bill of Rights in Congress. Bork and his followers have labored to obscure these facts, but the historical record proves beyond dispute that judicial review predates the Constitution by centuries, and that courts were expected to protect what Bork called “unenumerated rights”—rights not explicitly referenced in the Bill of Rights—against violation by the government. Remember, between 1788 and 1791, there was no Bill of Rights. Did the founders, then, think there were no rights for courts to protect during those years? Of course not. More, under the unwritten British Constitution the founding fathers grew up studying, all rights were “unenumerated.” Yet British and American courts had protected such rights nevertheless, declaring them to be part of the “law of the land,” which even the King could not violate. Of course, even the term “unenumerated” is inaccurate. The Constitution does specifically protect “liberty,” so that even the allegedly “unenumerated” freedoms conservatives typically reject actually are enumerated.

But the bottom line was that Bork was opposed not to “judicial activism,” but to the principle of judicial review itself. His extreme blend of relativism and majoritarianism led him to condemn the idea that courts could declare anything beyond the legislature’s purview. Bork envisioned courts, not as a co-equal branch, one-third of the checks-and-balances system, but at most as a handmaiden of the legislature, which should act to enforce the will of the majority—which he thought “has the right to rule simply because it is a majority.” That premise—the exact opposite of what the Founders believed—certainly is incompatible with any robust conception of judicial review.

Bork thought that judicial activism was imposing the moral views of Washington elites on the people of America, sometimes for good motives, but nevertheless putting the rule of law at risk. To make this point, he was fond of quoting a passage from Robert Bolt’s A Man for All Seasons in which Sir Thomas More resists the demands of his son-in-law Roper, to arrest a bad man in violation of legal principles:

More: What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More:...Oh?...And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat?...This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—...d’you really think you could stand upright in the winds that would blow then?

What’s bewildering about Bork’s use of this quotation is how much it proves the exact opposite of his point. More is not intending here to enforce the will of the majority, but to resist it. The majority is represented here by Roper, not by More. And this resistance is not based of any statutory law passed by the Parliament; it rests on More’s enforcement of unwritten principles, established by independent judges such as himself. Indeed, More is speaking here of enforcing law-of-the-land rights, the theory we today refer to as Substantive Due Process, and which was Bork’s bête noir. Throughout his book, Bork’s argument is analogous to Roper’s, not to More’s. More is being a “judicial activist” in this scene.

By making war on the principle of independent judicial review—a principle as essential to the Constitution as the separation of powers or checks and balances—Bork was doing much more than attacking any particular court decision or even a particular jurisprudential theory (liberal versus conservative, or some such). He was instead attacking the very principle of an independent court system. Why? To get at the Devil, as Bork saw it—i.e., liberal elitist morality imposed by judges, and particularly Roe v. Wade. Conservatives in general have followed him, attacking “judicial activism”—preferring judicial passivity—in order to get at Roe v. Wade. But as More would say, where would these conservatives hide, the courts all being flat?

Judicial review is a key to forcing our government to operate subject to the law, instead of above the law. Cutting down judicial review would leave every one of us exposed to the daunting, irresistible power of shifting, unpredictable legislative majorities. That is why the founders believed independent courts so essential. “It is a just observation, that the people commonly intend the PUBLIC GOOD,” wrote Hamilton, “but their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do.” Courts exist to serve as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Without judicial review, without an engaged judiciary, the Constitution’s promises of security would be valid only so long as the legislature chose to abide by them, and the instant the legislature chose to violate them, they would be rendered worthless. Where would we be with a judiciary as restrained as Bork and his followers (such as Judge Wilkinson) would have them? In fact, we’ve had a bit of a taste of it. It was the conservative rhetoric of “restraint” that gave us the 2012 Obamacare decision, in which Chef Justice Roberts upheld the ACA as an act of “judicial modesty.”

The conservative campaign against “judicial activism” is, in reality, one of two things: either it is only a way of complaining about particular decisions they don’t like, or it is—as in the case of Bork, or Judge Wilkinson—a much more consistent, and much more dangerous, call for the end of any meaningful judicial check on the other two branches of government. And where would we all hide, the rule of law all being flat?

"You Don't Own Me"

Today's Libertarianism.org features my essay about how Lesley Gore's classic song "You Don't Own Me" expresses a basic principle of freedom. In it I elaborate on how different philosophers and artists, including Shakespeare, Milton, Nabokov, Elton John, George Michael, and Sidney Poitier, have elaborated on the theme of self-ownership. Here's an excerpt:

The gay poet David Trinidad loved Gore’s song when it appeared, and recalled how he would sit in his room and play the record over and over until it was too scratched to enjoy. In his 1994 poem “Answer Song,” he imagines how Lesley’s marriage to Johnny might have fared...:

What if Lesley hears about women’s lib?
What if she goes into therapy and begins
to question her attraction to emotionally
unavailable men? Suppose under hypnosis,
she returns to her sixteenth birthday party,
relives all those tears, and learns that
it was Judy—not Johnny—she’d wanted
all along. There’s no answer to that
song, of course, but I have
heard rumors.

Lesley Gore in fact was a lesbian, as she admitted to herself only a few years after “You Don’t Own Me” hit the air....

Ironically, the effectiveness of “You Don’t Own Me” as a cultural weapon of self-defense has made it prime for borrowing by others whose message is not quite so gay-friendly. The rapper Eminem sampled the song in his 2010 tune “Untitled (Here We Go),” to fling back criticism about his violently homophobic and misogynistic lyrics. “Untitled” revels in violent fantasy and braggadocio, citing Gore’s song both in irony—to ridicule the notion of feminine assertiveness—and in conviction. He admits he’s “always shittin’ diarrhea at the mouth,” but “don’t strut away from me, cause / You don’t own me.” As for “remorse, I really don’t feel any.” He is “fashionable and ’bout as rational / as a rash on a fag’s asshole / Now let’s take that line, run it up the flag pole with Elton.”

Elton, of course, was Elton John...who in 2001 chose to perform alongside Eminem at the Grammy Awards. Many gays were shocked at this public alliance with a performer whose lyrics regularly incorporate images of savage violence toward homosexuals. But John has often refused to boycott performances in similar circumstances.... John refused to join other artists in boycotting performances in Russia after Vladimir Putin’s government began tightening persecutions of gays. In 2014, he told a St. Petersburg audience that he was shocked that the government had removed a memorial to Apple Computer founder Steve Jobs claiming it was “homosexual propaganda.” “Can this be true?” John asked his fans....

Is Tchaikovsky’s beautiful music “sexually perverting”?! As a gay man, I’ve always felt so welcome here in Russia. Stories of Russian fans—men and women who fell in love dancing to “Nikita”’ or their kids who sing along to “Circle of Life”—mean the world to me.

John’s reference to “Nikita” was well chosen. That song was released in 1985, when John was not only still in the closet, but a year into his marriage to recording engineer Renate Blauel. A year later, the U.S. Supreme Court would uphold the constitutionality of state “anti-sodomy” laws in Bowers v. Hardwick. The state may impose the “majority[’s] sentiments about the morality of homosexuality” virtually without hindrance, wrote Justice Byron White. To this Justice Harry Blackmun answered that the right to privacy in intimate relationships deserves protection “not because they contribute, in some direct and material way, to the general public welfare” but in consequence of the “‘moral fact that a person belongs to himself and not others nor to society as a whole.’” You don’t own me.....

“Nikita” makes no reference to homosexuality—at first it appears to be an ordinary love ballad, sung to a sweetheart trapped behind the Iron Curtain. In the music video, John sits in a red convertible on the free side of the Berlin Wall, singing across the line to a gorgeous female border guard whose striking eyes really do “look like ice on fire.”

Oh Nikita you will never know
Anything about my home.
I’ll never know how good it feels to hold you.
Nikita I need you so.

Yet Nikita is a man’s name, and the song in reality plumbs the hopelessness of love locked behind the borders of an oppressive state....

That was a feeling with which many Europeans could sympathize. When Communist authorities decreed the Berlin Wall on August 13, 1961, they severed thousands of German families from relatives on the other side. In his famous Ich bin ein Berliner speech—delivered the same month that “Judy’s Turn to Cry” appeared—President Kennedy called the wall “an offense against humanity, separating families, dividing husbands and wives and brothers and sisters, and dividing a people who wish to be joined together.” The “modern walled-in society,” wrote Vladislov Krasnov, who defected from the USSR a year later, had revealed to the world the basic principle of the Communist state: “all citizens are considered state property."

Simply by using a Russian name that most Western listeners would mistakenly assume to be feminine, John could evoke all of these ideas, and employ both metaphor and appropriation to tweak the deplorable similarity between Soviet authoritarianism and the legal and social barriers against same-sex love still so prevalent in the west....

[T]he Civil Rights Movement was also largely a generational movement, in which young Americans demanded an end to long-established generational practices. The young protestors who marched to Washington or rode buses in Freedom Summer were, King said, the “integration generation.”

In January, 1968, only months before King’s assassination, the connection between the movement for racial equality and the generation gap found ingenious expression in the film Guess Who’s Coming To Dinner, starring Sidney Poitier and Katherine Houghton

....Guess Who’s Coming to Dinner is actually not about race, but about the older generation accepting their children as adults.... Joanna cannot envision any problems with the engagement—she’s made up her mind, and sees no reason in the world not to be married immediately. But for John, the struggle is harder. His admiration for his father has left him unwilling to buck the older generation until at last he is forced. And when he is forced, the film’s climactic confrontation comes not in a clash the white and black families, but between John and his father. In words that might just as well have been spoken to white America by the rising generation of blacks fed up with being treated like children, John announces his independence and his right to make his own choices:

Read the rest...