Archive for the ‘Law’ Category

The Administrative State: A Crack in the Foundation of Liberty

Sunday, April 18th, 2010

On 16 June 1933, the front page of the New York Times announced the enactment of President Roosevelt’s New Deal legislation:

Assuming unprecedented peacetime control over the nation’s economic life, President Roosevelt placed in operation today his sweeping program for recovery from the depression.  Within two hours he signed acts of Congress giving him control over industry, power to coordinate the railroads, and authority to start work on a $3,300,000,000 public works program, and then began the active administration of these and other major measures.

N.Y. Times, A1 (6/16/1933).

This expansion of government power marked a radical departure from our country’s founding principles of liberty. Over the next few years the federal government spawned over 100 new agencies—called the alphabet agencies—to wield this power. This was the beginning of the administrative state.

The administrative state is incompatible with liberty for many reasons, most of which have to do with laissez-faire principles. But one reason that should persuade even the most committed statist is that adopting the administrative state undermines the core constitutional principle of separation of powers.

Long before the founding fathers began worrying about American independence, statesmen and political philosophers had advocated separating the powers of government. The idea itself is rather simple: if a single governing body possesses the power to write the law (legislative power), enforce the law (executive power), and apply the law to individual cases (judicial power), then there is nothing to prevent that governing body from destroying liberty. James Madison wrote about the importance of separating government’s powers as follows:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

James Madison, The Federalist No. 47

When the powers of government are distributed among coequal branches, the excesses and extremes of any one branch are moderated by the other two. For example, if the executive branch tries to use its power to unlawfully oppress an individual or group, the judicial branch can declare its actions unlawful, or the legislative branch can enact a law to prevent the oppression. Of course, if all three independent branches conspire together to destroy liberty, then separation of powers will not help. But having such a combination is far less likely than having just one of the branches run amok.

Nazi Germany, which exemplified many of the evils of unrestrained government power, serves as apt illustration of the consequences of disregarding the principle of separation of powers:

Independence of the judiciary was destroyed. Judges were removed from the bench for political and ‘racial’ reasons. Periodic ‘letters’ were sent by the Ministry of Justice to all Reich judges and public prosecutors, instructing them as to the results they must accomplish. Both the bench and bar were continually spied upon by the Gestapo and SD, and were directed to keep disposition of their cases politically acceptable. Judges, prosecutors and, in many cases, defense counsel were reduced in effect to an administrative arm of the Nazi Party.

United States v. Altstotter, Nuremburg Military Tribunals case no. 3 pg 7 indictment count 1 ¶ 7 (1947).

I am not arguing that disregard for the principle of separation of powers directly caused the horrors of Nazi Germany. I am confident, however, that separating the three primary government powers helps guard against such radical movements. This should appeal to individuals on every part of the political spectrum.

It is critical to understand that keeping government powers separate is the people’s responsibility. Each of the three branches will naturally press against the limits of its power—even when not driven by radicalism. That is the nature of power. So, if the people disregard the principle of separation of powers, each branch will gradually usurp the power of the others.

Usurpation by the judicial branch is called judicial activism, and it frequently attracts media attention and public anger. But the harm to separation of powers wrought by the administrative state, sometimes called the “unelected fourth branch of government,” attracts little notice today—although it was vehemently opposed in its early years.

So, how does the administrative state undermine the principle of separation of powers? The following quote from the United States Court of Appeals for the Ninth Circuit helps illustrate:

Most federal administrative agencies combine within one organization a number of responsibilities that our system of government normally seeks to separate. They formulate policy as does the legislature, administer policy as does the executive, and adjudicate controversies as does the judiciary. They investigate infractions of statutes or regulations, prosecute those against whom their investigation has established a prima facie case, and judge the case they themselves have presented.

Grolier v. Federal Trade Commission, 615 F.2d 1213 (9th Cir. 1980)(citing W. Gellhorn & C. Byse, Administrative Law, Cases and Comments 1035 (1974)).

In brief, most federal agencies violate the principle of separation of powers.

Unfortunately, this isn’t just another academic issue that will never touch the life of the average citizen. Agencies write volume upon volume of regulations each year. Most businesses are subject to agency regulation, and the consequence is that consumers must pay higher prices for goods and services. Agency regulation is particularly costly because it lacks the tempering influence of separation of powers.

Since the legislative, executive, and judicial functions are merged in many federal agencies, an agency’s regulatory goals may change drastically on short notice. Executive agencies are particularly volatile because every time the nation elects a new president, executive agencies get new leadership and the agencies’ regulatory goals change. When regulations change, businesses must spend money to comply, and these expenses are passed along to consumers.

Notwithstanding all this, I think it is important to recognize that the problems which agencies are created to solve are not often trivial. Usually they are serious problems which demand a meaningful solution. But the administrative state is not it. The administrative state violates the principle of separation of powers and permits the elected branches of government to punt tough issues of governance to unelected bureaucrats.

When the wealthy go hunting, they often employ people called beaters to walk in the thickets and startle animals into the open. If the animals were intelligent, they might recognize that they had two options besides running out in front of the hunters’ guns: stay put and let the beaters wander by or, if the beaters get too close, attack the poorly-armed beaters as they grope blindly through the thicket.

Choosing the administrative state in an effort to solve the nation’s problems is to permit fear or discomfort to drive us into a rash decision which undermines liberty; it is like the animal choosing to run out in front of the hunters’ guns. We must not forget that we have other options. If a problem is not yet concrete, if it is still possible that it will not come about, we can dig in deeper and wait for clearer information. Perhaps advances in technology will solve the problem. Maybe the potential problem will turn out to be nothing more than an unfounded suspicion. Finally, if we find that the problem is unavoidable, we can attack it head on. Our elected representatives can craft thoughtful legislation in harmony with the Constitution to solve those problems which are capable of solution.

Citizens United v. FEC

Friday, April 2nd, 2010

A few weeks before the 2008 primary election, a non-profit corporation called Citizens United tried to release a video criticizing Hillary Clinton. Federal campaign finance laws prohibited this, so Citizens United sued. In 2010, the Supreme Court ruled that those campaign finance laws were unconstitutional because they violated the First Amendment. President Obama publicly criticized the Supreme Court’s decision.

This video explains why President Obama was wrong and the Supreme Court was right.

There are three parts to this video.


Efficiency and Commerce for All

Thursday, February 11th, 2010

You probably own something which is worth more to you than the money you could sell it for. Wedding rings and family heirlooms are obvious examples. Suppose that this thing which you value so much had been damaged in some way, and you took it to a repair shop. Suppose that this repair shop, as is common, was in the business of selling as well as repairing items like yours. Suppose lastly that, because of mistake or malice, the repair shop sold your item instead of returning it to you. Certainly, you would want to recover your item and would expect the law to support your claim. After all, you have a right to your property, and when the repair shop sold your property instead of returning it to you, your property right was violated. Protecting property rights is one of the essential functions of government; in the words of the Declaration of Independence, “to secure these rights, governments are instituted among men.” But in the circumstances described above, your high expectations would be disappointed. Under current law, although you could sue to recover the monetary value of the item, you could not recover the item itself.

State law governing the sale of goods is based on a body of model statutes called the Uniform Commercial Code (UCC). Instead of arising from the usual legislative process, the UCC was written by two private legal organizations and then enacted—with a few modifications—by the legislatures of most states. See UCC Introduction. The provision of the UCC that would prevent you from recovering your item in the circumstances described above reads as follows, “Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business. … regardless of any condition expressed between the parties …” UCC § 2-403(2)-(3).

So we see that in some circumstances state law explicitly refuses to protect you from clear violations of your property rights. This isn’t earth-shattering news. It probably won’t make you jump out of your chair and start a revolution. Nevertheless, it is worth noting because this and other laws which work similar mischief are evidence of a dangerous trend in society’s view of property rights. Put simply, concerns about commercial efficiency have come to trump principles of justice.

The efficiency justification for UCC § 2-403 runs something like this: commerce depends upon low-cost transactions between buyers and sellers. If buyers were obliged to return goods that they had purchased under circumstances like those described above (a repairman wrongfully selling goods that were only entrusted to him for repair), then buyers could never be certain that they actually owned the goods that they paid for. This uncertainty about ownership would have inefficient consequences. For example, some buyers would pay to investigate whether the seller had actual ownership of the goods; some buyers would buy anonymously to avoid the risk; and some transactions simply wouldn’t happen at all. These inefficiencies and other consequences of uncertainty would stifle commerce.

I don’t know whether these efficiency concerns stem from sound economics, but it doesn’t really matter. The important question is not whether a law is efficient; the important question is whether a law is just. Just laws are the foundation of individual liberty because just laws recognize and protect individual rights. UCC § 2-403 is an unjust law because after implicitly recognizing a property right, it declines to enforce it. Sadly, this is not an isolated problem.

This substitution of efficiency for justice manifests itself in many other areas of the law. In real property law, for example, the U.S. Supreme Court ruled that the Constitution did not bar government from seizing the homes of private citizens and giving them to a corporation if that corporation could show that it would make more efficient use of the land. Kelo v. City of New London, 545 U.S. 469 (2005). In nuisance law, courts now allow individuals to damage their neighbor’s property through the creation of a nuisance if that nuisance produces economically efficient results. Boomer v. Atlantic Cement Co., 26 NY2d 219 (1970). These are only two examples of many.

Justice is the heart of good law. If we substitute efficiency for justice, law becomes nothing more than a manipulable mechanism for invoking government force. Justice is a foundational part of American traditions. Among the few phrases of the Pledge of Allegiance that have remained constant—and have not been the target of law suits—is the phrase “liberty and justice for all.” Do we really want to substitute such noble ideals with an uninspiring surrender like “efficiency and commerce for all”?

Whose Kids are They?

Tuesday, February 2nd, 2010

Efforts to describe the legal relationship between parents and children are usually messy and often offensive. Part of the problem is that it is difficult to classify parental rights. What kind of rights are they? Talking about parental rights as if they were property rights in children is distasteful, but that seems to be the usual framework—if only by way of analogy—that writers use. The fact that children grow up further complicates the discussion. When should parental rights end? Clearly the strength and scope of parental rights should decrease as the child becomes self-sufficient, but at what stage of development should that line be drawn, and who should draw it?

The problem is no simpler when considered from the perspective of a child’s rights. What rights can children enforce against their parents? Food, shelter, clothing, education, medical care, emotional health? Is it too extreme to characterize a child’s right to support as an indentured servitude of the parents to the child’s needs? Society recognizes children’s rights over their parents to some degree through child support laws.

This complex relationship of rights and responsibilities only gets murkier as third parties get involved. Doctors who disagree with parents’ medical decisions sometimes try to force parents to administer a prescribed treatment. Social workers take children away from parents they judge to be unfit—sometimes even when that judgment is based on soft criteria like failing to teach social mores. Legislatures and school boards enact compulsory school attendance laws and then grant parents no control over what is taught or who teaches. In short, everyone seems to think they know what is best for children, but some people have enough political power to clothe their opinions with the force of law.

I propose that the only justifiable laws governing the parent-child relationship are those that fall into one of two categories: laws articulating the rights of a parent over his or her child and laws articulating the rights of a child over his or her parents. I can imagine no legitimate basis for a third parties—including government—to assert independent rights over children. This is not to say that third parties can never get involved; I am only arguing that third party involvement must be limited to enforcement of a legitimate right that falls into one of the two categories listed above.  To support my proposition, I present the following foundations for children’s rights and parents’ rights, and argue that no such foundation exists for third-parties—including government.

The Origin of Children’s Rights

Murray Rothbard, one of the intellectual leaders of the libertarian movement, argued that children should have no special rights over their parents:

in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights. Applying our theory to parents and children, this means that … the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights.

Murray Rothbard, The Ethics of Liberty 100 (1998).

This reasoning strikes me as simplistic because it prematurely dismisses the obligation that parents incur by bringing their child into human existence. Rothbard attempts to raise problems and present a parade of horribles that will come about if we recognize such a parental obligation, but I find his arguments unpersuasive (I can explain my reasons if any Rothbard devotees are interested). I think Attorney Stephan Kinsella has a better argument:

the parent has various positive obligations to his or her children, such as the obligation to feed, shelter, educate, etc. The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs.

How We Come to Own Ourselves, Mises Daily: 7 Sept. 2006.

This is a solid foundation for children’s rights. Children’s rights are not derived solely from their need, and not solely from their parent’s act of bringing them into the world. They are derived from a combination of both: a voluntary act by adults that puts another human in a position of complete dependence upon them. This creates an obligation in the parents and a corresponding right in the child.

The Origin of Parental Rights

Rothbard had a similarly limited conception of parental rights:

the child has his full rights of self-ownership when he demonstrates that he has them in nature-in short, when he leaves or “runs away” from home. Regardless of his age, we must grant to every child the absolute right to run away and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child’s ultimate expression of his right of self-ownership, regardless of age.

Ethics of Liberty, 103.

I don’t know whether Rothbard was a parent or interacted much with children during his adult life, but regardless of his understanding of the practical consequences of the policy he proposed, his approach fails for a more important reason. It does not recognize the obligation that the child owes because of the suffering and expense that parents must bear to create and preserve a body for the child. Once again, Stephan Kinsella’s reasoning is more persuasive:

So, who owns a child’s body? Initially, the parents own it as a sort of temporary trustee. The parents, as the producers of the child, have an objective link to the child’s body that defeats any claims of outsiders (unless the parents sever this link by abusing their position). That is, parents have a better claim to the child than any outsiders, because of their natural link to the child. However, when the child “homesteads” or “appropriates” his own body by establishing the requisite objective link sufficient to establish self-ownership, the child becomes an adult, so to speak, and now has a better claim to his body than his parents.

How We Come to Own Ourselves.

In other words, when a child is born its body is entirely the product of its parents’—predominately the mother’s—sacrifice and effort. This serves as the foundation for parental rights. However, as the child grows and matures by developing its body, learning skills and abilities, and gaining self control, the parents’ ties are subordinated to the child-turned-adult’s own claims of self-ownership. It is important to point out that the parents’ relationship to the child is that of a trustee in trust, not total owner. This means that the child’s rights not to be abused remain in full force.

No Third Party Rights

In general, third parties can claim no special relationship that would entitle them to assert rights over children. Certainly, the argument for biological parental rights can be modified to show the legitimacy of adoptive and foster parental rights, but that is not the issue here. The question is whether unrelated third parties are justified in turning their concern for the wellbeing of someone else’s children into a law. I can think of no good reason to permit this. For third-party intermeddlers, there is no way to avoid the force of Rothbard’s reasoning: “in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights.” Ethics of Liberty, 100.

Certainly this broad framework doesn’t answer the detailed questions about when parental conduct crosses the line from discipline to abuse or neglect. But with solid foundations for children’s rights and parent’s rights, it will be easier to work out these details and eliminate laws that seek to impose unjustifiable burdens on parents and children.

Gross Income Attitudes

Thursday, January 28th, 2010

It is income tax season again, and as you pore over your records to discover how much the IRS siphoned from your paycheck and whether you have to fork over more, consider this frightening fact. From the government’s perspective, they could have taken much, much more. As proof of this, I present two pieces of evidence: the definition of “income” found in the Internal Revenue Code, and the concept of tax expenditures.

As you fill out your income tax forms, you will likely have to compute your gross income. The number you come up with, however, does not even come close to what the government’s tax theory says your gross income really is. As defined in Section 61 of the Internal Revenue Code, gross income is “all income from whatever source derived.” This is not terribly troubling until you understand the scope of the term “income.” As defined by the Supreme Court, “income” is any increase to wealth. See, e.g. Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955); see also Henry C. Simons, Personal Income Taxation 50 (1988). This isn’t just the money you earn; it includes the value of any services you receive (even those services you provided for yourself) and the value of any property rights you used. So in a world in which we strictly followed the government’s tax theory, you would include in your gross income calculation the value of cleaning your house, washing your car, brushing your teeth, and so on. You would include the value of living in your home, driving your car, wearing your clothes, etc. Happily, for now, the administrative costs of discovering the value of all these “accessions to wealth” limits the tax man’s reach. But as technology advances, who knows, you might be listing items like this on your income tax forms.

Understanding the government’s perspective on income is important because it reveals a dangerous attitude towards individual autonomy. Every productive act you do and everything you enjoy is taxable. There is nothing—at least nothing recognized by the government—in the legal foundation undergirding Congress’ authority to tax that prevents them from taxing anything and everything.

Now, some of you tax-savvy readers may be shaking your heads and thinking, “What about all the deductions, exemptions, and exclusions? Surely this is solid evidence that the government recognizes that there are some things that simply should not be taxed.” To disabuse you of this overly-charitable idea, let me introduce to you the concept of tax expenditures.

The concept of tax expenditures was invented by Stanley S. Surrey, a Harvard Law Professor and former assistant secretary of the United States Treasury. This concept profoundly influenced government budget analysis both in the United States and abroad. See Leonard E. Burman, Is the Tax Expenditure Concept Still Relevant? 56 National Tax Journal 614 (2003). The tax expenditure concept changed how the government calculated how much it was spending. The traditional method was simply to tally up the amount of money that the government expected to pay to cover its programs and projects. Mr. Surrey changed that method by proposing that the government include in its spending calculations the amount that it did not collect because of tax exemptions. The taxes that would have come from those portions of income that the government could have taxed but didn’t were, in Mr. Surrey’s method, uncollected revenue that should be accounted for. Adopting Mr. Surrey’s idea, the Budget Act of 1974 defined tax expenditures as, “those revenue losses attributable to provisions of the Federal tax laws which allow a special exclusion, exemption, or deduction from gross income or which provide a special credit, a preferential rate of tax, or a deferral of tax liability.”

Mr. Surrey’s upside-down method encouraged government to abandon the idea that some organizations and activities were simply beyond the reach of the tax code and to view any tax exemptions, deductions, or exclusions as monetary gifts from the government to the benefiting individuals and organizations. For example, under the Section 170 of the Internal Revenue Code an individual may be eligible for a tax deduction for the amount that he or she donates to a qualifying charitable organization. Under Mr. Surrey’s method, however, instead of recognizing that government simply should not be allowed to tax charitable donations, the government views the taxes that it could have taken but didn’t as a government subsidy—as if government itself were donating money by refraining from its “right” to tax. Rather than recognizing limits on its power to tax, government now views these exemptions, deductions, and exclusions as a form of discretionary spending justifiable only because it furthers political or social goals.

Putting together the two halves of the above discussion shows that government assumes that every productive or enjoyable thing you do is potentially taxable income and that by not taxing you to the full extent of its “rights,” it is generously giving you a gift. This attitude is particularly frightening in a time when unwise citizens continue to give political power to leaders who think they can spend their way out of any economic crisis or social ill, government budget deficits grow by the trillions of dollars, and academia continues to erode recognition of individual property rights. We have strayed very far from the relationship between citizens and government that the Declaration of Independence described. Do we still believe that the government is the servant of the people? For our government’s attitude about taxes is a strange attitude for a servant to take.

The Judge’s Role

Thursday, November 19th, 2009

Alexander Hamilton once wrote, “I agree that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” The Federalist No. 78 (Alexander Hamilton) (quoting Montesquieu, I The Spirit of Laws 181 (1748)).

Separation of the judicial power from the legislative and executive powers is a necessary precondition for liberty, and it depends upon two important restraints. Restraining the legislature and executive from exercising or influencing judicial power—this is called judicial independence. And restraining the judiciary from exercising legislative power—this is called judicial deference. Both judicial independence and judicial deference are essential to the just administration of law. Sadly, neither of these restraints is properly understood or applied today.

Judicial independence is necessary to prevent politics and special interests from tainting the adjudication of individual rights, but recognition of its importance has waxed and waned. At times, “the ideal of a court of justice has been the omniscient and inexorable judgment seat of God.” Brooks Adams, The Theory of Social Revolutions 36 (1913). At other times, the idea of a judiciary that was independent from the legislature has been “treated with the utmost contempt” John Quincy Adams, I Memoirs 322 (1848) (recording sentiments expressed to him by Senator Giles of Virginia). A striking example of the fragility of judicial independence in American history was Franklin D. Roosevelt’s threats to increase the number of justices on the Supreme Court to obtain favorable rulings on New Deal legislation. Roosevelt was frustrated with the Supreme Court’s consistent decisions that his proposed legislation violated the Constitution. On Friday, January 11, 1935, then Secretary of the Interior Harold L. Ickes wrote in his diary,

The Attorney General went so far as to say that if the Court went against the Government, the number of justices should be increased at once so as to give a favorable majority. As a matter of fact, the President suggested this possibility to me during our interview on Thursday, and I told him that that is precisely what ought to be done. It wouldn’t be the first time that the Supreme Court had been increased in size to meet a temporary emergency and it certainly would be justified in this case.

Harold L. Ickes, The Secret Diary of Harold L. Ickes 274 (1954). For reasons that are disputed by historians, Justice Owen J. Roberts relented and changed his position on the constitutionality of the New Deal in a case called West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). This surrender made Roosevelt’s plan to expand the court unnecessary, and is sometimes called “the switch in time that saved the nine.” Justice Roberts insisted that he hadn’t changed his vote in response to Roosevelt’s threats, but whether or not this is true, it was clear that Roosevelt had already resolved to change the membership of the court to get the outcome he wanted. The threat to judicial independence was real.

Judicial independence is essential to the preservation of liberty because judges bear the heavy burden of standing against the will of the majority when enactment of the majority’s will would infringe upon individual rights. But the obvious follow-up question is what are the individual rights that judges should protect? Or put another way, what is to prevent judges from inventing rights and striking down legislation for political, personal, or ideological reasons? The answer is that a judge is obligated and authorized to protect only those rights recognized in the charter from which he or she receives judicial authority. This limitation prevents the judge from becoming a super legislature with a lifelong term. With this limitation, judges become as Hamilton described, having “neither force nor will, but merely judgment.” The Federalist No. 78 (Alexander Hamilton). If judges respect this limitation, both judicial independence and judicial deference are served. The judge defers to the Constitution for the rights that he or she is authorized and obligated to protect, and then acts independently of the legislature and executive in protecting those rights.

The Constitution provides two separate sources from which judges can draw information about the rights that they are obligated to protect. The more commonly recognized source is the Bill of Rights. Incidentally, it is strange that the Bill of Rights has become the primary source, because it was not part of the original Constitution and was thought superfluous by many of the founders, including as James Madison. The second source of information about the rights that judges are obligated to protect is the language that limits the role and authority of each of the political branches. This second source does not list individual rights, but it implies them by confining the authority of the executive and legislative branches. Sadly, this second source of information has been largely ignored by judges, and as a result, the legislature and the executive now act far beyond their constitutional limits. Today, judges usually refuse to give any real protection to rights that are not specifically listed in the Bill of Rights. This failure of judges to protect individual rights other than those listed in the Bill of Rights is wrongly identified as judicial deference. During the recent struggle over the nomination of Justice Sotomayor, Attorney Jeff Rowes wrote a compelling article in the Wall Street Journal highlighting this problem:

The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution’s framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.

Jeff Rowes, Judicial ‘Activism’ Isn’t the Issue, Wall St. J., June 6, 2009, at A13. This misunderstanding of judicial deference undermines individual liberty and misleads people about the judge’s role. True judicial deference means that unless a law violates the Constitution (either by running afoul of a provision of the Bill of Rights or by exceeding the legislature’s limits of authority) a judge will interpret and apply that law as it is written.

This confusion about judicial deference is largely due to the counterfactual and counterhistorical claim that the Constitution does not embody a particular socioeconomic philosophy. The record of the debates over the language of the Constitution, the intellectual climate of the time, the size and nature of government at the time, and the text of the Constitution all plainly show that the Constitution was enacted on a foundation of natural rights and an assumption of economic liberty. Ever since the ratification of the Constitution, however, power-hungry men and women have sought to destroy this foundation and make the Constitution infinitely flexible. Consequently, any act by the judicial branch to check the excesses of the legislature and the executive branches that is not supported by both the plain text of the Bill of Rights as well as popular feeling is branded “judicial activism.” At the same time, real judicial activism goes unnoticed as judges expand statutes beyond their plain meaning and restrict private actions that don’t fit the judges’ worldview.

Law and Morality

Monday, November 9th, 2009

Last week a majority of Maine voters chose to preserve traditional marriage. In response, the pro-gay political movement protested that their rights had been violated and published pictures and interviews of disappointed homosexual couples. One common complaint from this movement has been that traditional marriage laws are illegitimate because they are based on majority morals. In a similar vein, two weeks ago I had an extended discussion with a professor of property law—who also happens to be a devotee of law and economics—about zoning laws based on majority morals. Frequently, communities use zoning regulations to exclude bars, distilleries, strip clubs, pornography, public nudity, and other things that the community dislikes for moral reasons. This professor insisted that morality was not a legitimate justification for zoning regulations and that cities should have to justify any laws they enact on non-moral grounds.

Arguments that laws should not be based on morals are persuasive in the United States. Many of the early immigrants to the United States were driven here by religious persecution, and, consequently, the protections for religious freedom written in the First Amendment are among the strongest in the world. History has strengthened this sentiment; state action enforcing a moral code raises the specter of atrocities like the inquisition, the Salem witch trials, and the violent expulsion of the Mormons from the United States in the middle of the nineteenth century. Another complication is that individuals examining a moral code from the outside often judge its practitioners to be irrational or worse. Individuals within a moral code often judge those who don’t abide by it to be deviant or worse. An extreme example of such a clash is the long conflict between western culture and fundamentalist Islam. These sentiments against laws based on morality are misleading because at root all legitimate laws are based on moral judgments.

For many laws, particularly criminal laws, the moral judgment is obvious: murder is bad; stealing is bad; injuring others is bad; and so on. For other laws, the connection to a moral judgment is distant and only becomes evident by asking what the end goal of the law is and then asking why society ought to pursue that goal. The private reasons of legislators and voters for supporting the law are irrelevant; the moral aspect of the law is revealed through the reasons that the public accepts as legitimate arguments.

When I presented this argument in my discussion with the property law professor, he immediately disagreed. “What about,” he asked, “laws designed solely to achieve some economic benefit?” He argued that such laws were not based on morality because they were only intended to promote the production of goods (like televisions, food, cellphones, etc) that have no moral aspect at all. This argument touches on but misapplies an important point. Clearly, an object can be good but it cannot be moral. It makes sense to describe a screwdriver as good, but it is nonsense to say that it is moral. Morality implies will—a trait that screwdrivers lack. So my property law friend was partially correct to claim that the goods that a law seeks to promote may lack a moral aspect. But his argument fails because laws are not simply assertions of fact; laws constrain human action. So, a law designed to achieve an economic benefit is not simply a non-moral judgment that economic benefits are good; it also implies the moral judgment that people should act (and government should force them to act) in ways that produce economic benefits.

Recognizing that all laws are ultimately based on moral judgments has important consequences. It means that objecting to a law because it is based on morality simply doesn’t make sense for the non-anarchist. It also means experts in economics, law, and public policy are not necessarily experts on the legitimacy of laws; experts on the legitimacy of laws are those who have a clear, deep understanding of moral truth. Perhaps most important, recognizing that all laws are ultimately based on moral judgments places moral and immoral individuals on an equal footing when discussing politics.

Political movements are successful only insofar as they appeal to popular moral justifications. Honest politicians do this by explaining the moral justifications they rely on and attempting to persuade others to adopt those justifications. Dishonest politicians hide the moral implications of their political goals and instead present widely accepted but inapplicable moral values. The gay rights movement has used this latter strategy with marked success by injecting the popular moral judgment of equality before the law into the gay marriage debate. See my previous post. The fact that the decision in Maine to deny marriage licenses to gay couples was a moral judgment in no way invalidates that judgment. It simply shows that the majority still rejects homosexuality as immoral, and that it has not fallen for the equal protection ruse.

Before ending I want to clarify two possible misunderstandings that are not directly relevant but could arise from this post. The claim that laws are unavoidably tied to morality does not contradict the existence of natural law, nor does it in any way endorse moral relativism. Moral judgments can be accurate or inaccurate just like any other kind of judgment; natural law is the articulation of accurate moral judgment.

Blood and Bone Marrow

Friday, October 30th, 2009

The debate over the federal takeover of America’s health care has absorbed the attention and efforts of political activists of every persuasion. But two days ago the Institute for Justice, the nation’s premier public-interest law firm, launched a case that starkly illustrates the bad results of government interference with individual liberty in healthcare decisions.

Section 274(e)(a) of the National Organ Transplant Act reads in part, “It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” If an individual violates this provision, that individual is subject to a penalty of up to five years in prison and or a $50,000 fine. Section 274(e)(b). And, thoughtlessly, congress chose to include bone marrow in the definition of human organ. Section 274(e)(c).

What this means is that even if you happen to have a disease that requires a bone-marrow transplant, like the plaintiffs in the suit filed by the Institute for Justice, the law forbids you from purchasing bone-marrow from potential donors who need an incentive other than good will and social approval. If you do make such a purchase, you are a criminal under the present law.

Now, if you are a liberty-minded individual, a question may have bubbled up in your mind during the above exposition: How under the Constitution of the United States, can congress have the power to criminalize the purchase of bone marrow? Where did congress get the power to regulate what an individual chooses to do with his or her own body? The answer to this question is found in the final words of Section 274(e)(a) quoted above, “if the transfer affects interstate commerce.” This phrase invokes what is known in constitutional law as the “Commerce Clause.” This horribly abused bit of language is found in Article I Section 8 clause 3 of the constitution: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Congress has invoked the Commerce Clause to regulate everything from the relationship between employers and employees (NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)), to home gardening (Wickard v. Filburn, 317 U.S. 111 (1942)). Congress has persuaded the Supreme Court to go along with it in expanding this power so far that it can now regulate any action that could in any way have an impact on interstate commerce—even if only in the aggregate.

Thus, through a very strained interpretation of a single sentence, congress can regulate any transaction, including the purchase of bone marrow. But challenging the Commerce Clause is not the subject of the Institute’s law suit—sadly we are too far down the road to statism now for that challenge to be effective. Even if you accept the idea that congress should paternalistically forbid transactions that it decides may be unwise, prohibiting the sale of bone marrow doesn’t make sense. So the challenge brought by the Institute for Justice is based on the doctrines of equal protection and due process:

NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells—such as blood—for which compensated donation is legal.  That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again.  The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Institute for Justice Press Release

In other words, there is no legitimate reason to distinguish between compensation for blood donations and compensation for bone marrow donations. Congress just happened to ban one and permit the other. Consequently, individuals who could otherwise be successfully treated are dying because they are forbidden from using money to motivate compatible donors.

The fact that congress chose to irrationally regulate the sale of bone marrow gives the lie to those pundits and politicians who insist that the federal health care takeover now in progress will not restrict access to medical care. Is it rational to expect that once the federal government is providing health insurance, setting the prices that doctors can charge, and forcing individuals to purchase the type of health care congress approves of, that we can avoid more laws that are just as inane as the current bone marrow regulations? Not hardly.

To add even more irony to the picture, read the stated intent for the National Organ Transplant Act: “To address the nation’s critical organ donation shortage and improve the organ matching and placement process, the U.S. Congress passed the National Organ Transplant Act.”

Health care isn’t a social project that well-heeled bureaucrats can beneficently tinker with. They are not gods, kings, or even experts. They are exceedingly fallible men and women who—even when they are not in the pocket of a special interest—somehow manage to get themselves into moral, financial, and legal trouble.

As Chip Mellor, the president and general counsel of the Institute for Justice, wisely said, “Bad things happen when the federal government exceeds its constitutional authority.  In this case, people actually die. ”

The AIG Witch Hunt

Thursday, March 19th, 2009

The AIG witch hunt is a sickening example of how corrupt politicians amass power and threaten individual liberty. Venting anger about the economic disaster may feel satisfying, but this witch hunt is dangerous for at least two reasons. First, it distracts the public from the fraud, waste, and abuse that the Federal Government has committed against the American people, and second, it generates popular support for taking property from unpopular individuals.

Since at least 1970, the Federal Government has been giving away tax dollars to corporations in ever increasing amounts. For a chronology of this corrupt practice, see Just over four weeks ago, however, the Federal Government took this practice to new depths, siphoning $787 billion from taxpayers to “stimulate the economy.” Naturally, special interest groups sent a swarm of lobbyists to secure their share of the loot. Soon after, the President asked for $3.9 trillion ($1.75 trillion more than the country’s projected receipts) to pay for his programs during his first year. Despite this gross misconduct, our clever political leaders have successfully distracted attention from their own misdeeds by inciting outrage over $165 million of retention bonuses.

As galling as it may be to those of us who aren’t on the AIG gravy train, by paying the retention bonuses AIG is simply honoring a contractual obligation. Isn’t that the honest thing to do? Don’t our ideas of honor and justice encourage people to fulfill promises and pay what they owe? Nevertheless, legislators are calling for blood and the mass media happily assists by goading the public into a frenzy.

Presently there is no evidence that AIG has done anything unlawful by paying these bonuses. Yet our distinguished political class protests that AIG should never have paid out, and suggests imposing a 90 to 100% tax on the individuals who received the bonuses to recoup the money.

To protect individual liberty, the Constitution strictly limits government action and lists certain rights that the government must not violate. Prominent among the rights protected by the constitution is the right to be protected in the possession of property. The Fifth Amendment commands “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

If the Federal Government were to use its power to take back the bonus payments, it would undermine the Fifth Amendment’s protection of property rights. No matter how the statists decide to spin it, such an exercise of power would in essence be the use of force by government to confiscate the lawfully owned property of the targeted individuals without due process of law. In effect, such action would amount to a declaration that the property rights of individuals who are politically unpopular are no longer protected. I think that would be a mistake.

Equal Rights and Proposition 8

Friday, November 14th, 2008

There has been significant uproar about the supposed violation of rights caused by Proposition 8. Before you believe the hyperbole and start spouting analogies between the gay “rights” movement and the civil rights movement, consider this.

First, some basic distinctions: positive rights, negative rights, and equal rights.

Positive rights theorists argue that people are entitled to stuff (or things if you prefer). These positive rights are usually framed as general slogans: ‘everyone has a right to a good education,’ or ‘everyone has a right to basic food and shelter’ etc. These ‘rights’ sound benevolent and non-controversial when framed in the passive voice. They don’t sound so great when stated more clearly: ‘you have to pay for your neighbors’ kids to be educated,’ or ‘you must give food and shelter to anyone who needs it,’ etc. Thankfully, the Supreme Court has not yet given positive rights theory favorable treatment.

Negative rights theory is founded on individual autonomy and personal responsibility. Rather than detailing supposed entitlements, negative rights describe individual liberty. Negative rights correlate with the natural rights principles embodied in the Declaration of Independence and the Constitution. These rights are not provided by government; they are an inherent part of being human, and people from all different backgrounds and upbringings recognize them almost instinctively. An easy way to distinguish a negative right from a positive right is to ask whether the questioned right would require the participation of anyone else. Compare the right to life with the right to education. No one else needs to do anything to grant you the right to life. In fact, if every other human being were to disappear, you could still exercise your right to life. Conversely, the ‘right’ to education requires that someone else provide the education. You must enslave someone else to provide you with education because it depends on another’s action.

Equal rights are a little more complex than either positive rights or negative rights. Equal rights derive from the principle that all people should be treated equally under in the law. This clearly does not mean that no distinctions can be made between people. If that were the case criminals could not be imprisoned because that would be unequal treatment. The root of the equal rights principle is that the law may not make distinctions between people without a legitimate reason for doing so. What amounts to a legitimate reason is the subject of endless debate. Some reasons are easily categorized as illegitimate basis for unequal treatment, such as race and religion. Other reasons are clearly legitimate, such as violent behavior harming others.

Equal rights questions become increasingly complex as government expands into more and more areas of human life. For example, there is no natural right to free education, but since government has extended the opportunity to some citizens, equal treatment under the law requires that it extend the same opportunity to all citizens. However, even with education, the government makes distinctions. For example the opportunity for free government education ends once a citizen reaches a certain age.

Now that the terminology is clear, on to the meat of the issue.

Homosexual marriage is an equal rights question. There is clearly no natural right to civil marriage; civil marriage is the formal recognition by the government of an emotional and legal commitment. Since the formal recognition depends on government action, this is not a natural or negative right. So, a right to gay marriage could only be justified under an equal rights argument. However, as explained above, government must treat people equally under the law, but it also must make distinctions between people in determining what equal treatment requires. Many people are deceived into thinking that gays should have an equal right to be married because they do not recognize the legitimacy of the distinction between same homosexual couples and heterosexual couples.

Equal rights arguments do not justify homosexual marriage because of the unique history of civil marriage. Civil marriage was partly a consequence of government entanglement with religion. This entanglement resulted in a number of laws whose primary justification was promoting morality. Many of these laws criminalized sexual behavior that the majority of citizens viewed as immoral, such as fornication, adultery, bigamy, and homosexuality. Many commentators have written about the illegitimacy of laws that prohibit private consensual behavior, but the fact remains that such laws are still on the books. Civil marriage was the product of such laws.

Because of its history, civil marriage embodies a moral judgment by the majority. If someone objects to that moral judgment or the legitimacy of embodying that moral judgment in a government institution, then the proper response is to challenge the institution—civil marriage. The argument would go something like this: marriage is not a proper function of government; it is an entirely private matter between individuals and perhaps churches; therefore, government should stop issuing marriage licenses and abolish any benefit to married couples as such.

To state the problem more clearly, equal protection under the law prohibits the government from making illegitimate distinctions between individuals when applying its laws. Since civil marriage is the product of a majority moral judgment, it is perfectly legitimate for the government to distinguish between marriages that comply with the majority moral judgment and those that do not. If there is dissent from the majority moral judgment, the proper response is to argue against that moral judgment’s embodiment in a civil institution, not to force the majority to adopt a new moral judgment to justify the institution.

Since the only valid reason for government to recognize marriage at all is majoritarian moral judgment, it is irrational to bring an equal rights claim against the government’s use of majoritarian moral judgments as the distinguishing factor when deciding not to recognize homosexual marriage.

Forcing the majority to recognize homosexual marriage contrary to its morals would not reflect equal protection under the laws; it would be the recognition of a positive right to marriage between any consenting adults. I will save detailed explanations for why positive rights theory is illegitimate for another post.

One final argument that I often hear from supporters of homosexual marriage rights is that it isn’t about the moral judgment at all; it is about the tax status, the default inheritance rules, etc. That is completely false. All of those things can be achieved through legal contracts without changing the marriage laws. The real issue is that homosexuals want a stamp of acceptance and approval by the government that says, “this relationship is OK there is nothing wrong with homosexuality.” Since they can’t convince their neighbors that they are right, they want to force the issue in the courts.