Supreme Court — VOICES for REASON

This fall, the Supreme Court will take up a case involving anti-gay demonstrators who travel around the country ruining military funerals with inflammatory messages. If you find yourself interested in following this case’s complexities, I urge you to keep in mind one important principle: property rights.

The case is called Snyder v. Phelps. Albert Snyder’s only son, Matthew, was a marine who was killed in Iraq. Matthew’s funeral was held at St. John’s Catholic Church in Westminster, Maryland. On the day of the event, protestors from the Westboro Church positioned themselves at the main entrance to the church property. In response, the funeral procession was moved to an alternate entrance—but still the demonstrators were only 200 to 300 feet away. They carried signs saying “Thank God for Dead Soldiers,” “You’re Going to Hell,” and “God Hates You.” One held a picture of two males engaged in anal sexual intercourse. (The demonstrators’ motives in all this are a mystical mish-mash unworthy of serious consideration.)

As this case progresses, here’s the question I’d like you to think about: How were the protestors able to get close enough for their signs to be easily legible—close enough so that family members with their eyes open had no choice but to  see those ugly signs on a day of mourning? The answer, I suggest, lies in that familiar institution known as “public property.” We take it for granted that streets and sidewalks are, and must be, publicly owned. But look where that leads: Any taxpayer can claim a right to use them as an owner. So, the Westboro Church picketers can self-righteously proclaim to the Supreme Court that they were just exercising their First Amendment rights to speak on public property. If it happened to destroy the solemnity of a funeral, that’s the family’s tough luck.

Now consider how this kind of situation could be completely avoided in a society where all property is privately owned—the fully capitalist society envisioned by Ayn Rand and most closely approximated in nineteenth century America. In such an ideal society, there would be no public streets or sidewalks. I know, it sounds impossible. But in fact, private property is practical, in streets and sidewalks no less than cars and houses, and it’s been proven so whenever it’s been tried.

But even if you’re not fully convinced, stay with me on the Westboro Church case. In a society of private property, no church or funeral home would have to be bordered by land on which creatures such as the Westboro Church demonstrators had a legal right of access. Instead, every such church or funeral home would be surrounded by private property (including private streets and sidewalks), whose owners would have full legal rights to exclude such obnoxious displays as the ones at issue here. Through contracts arrived at voluntarily, a church and its surrounding property owners could agree to forbid any such interference as happened to the Snyder family.

In a private property regime, the Westboro Church demonstrators could be rendered powerless to spoil anyone’s funeral. If such demonstrators showed up on private property, the police could be called to arrest them for trespass and haul them away to jail. And that, in a case like this, would be sweet justice.

Image: Stock.xchng

In light of Elena Kagan’s impending confirmation for the Supreme Court, I’m troubled by the clash between her legal philosophy and that of America’s Founding Fathers. As I wrote recently in The Christian Science Monitor, “Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.”

I suppose you could call it black humor, but I’m imagining what the results might be if Kagan were called upon to edit Thomas Jefferson’s most famous passage in the Declaration of Independence. What if Kagan’s own views, as inspired by Justice Oliver Wendell Holmes, Jr., were to replace America’s founding ideals? I’m thinking the result would look something like this:

“We hold these personal opinions to be pretty important for us, but not necessarily for anyone else—that all people are equally subject to society’s arbitrary command—–that they are endowed by majority vote with various uncertain and alienable privileges—that among these are life spent in the service of others, liberty to achieve the public interest, and the pursuit of everyone’s happiness but one’s own—that to create these privileges out of thin air, governments are fastened onto humankind, deriving their arbitrary powers from the consent of the ruling faction at any particular moment.”

It’s technically not too late for the full Senate to do the right thing and vote to reject Kagan—but unfortunately, most of our senators see nothing amiss in her philosophy of governance.

(If you need to cleanse your palate, the full text of the original Declaration of Independence is here.)

Image: WikiMedia Commons

The Senate Judiciary Committee has approved the nomination of Elena Kagan to the Supreme Court. In a just-published op-ed in the Christian Science Monitor, my colleague Tom Bowden argues that Kagan does not understand the Constitution–the document which, if she confirmed by the Senate, Kagan will have to swear to uphold.

Alarmingly, Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.

As a matter of historical fact, the Founding Fathers wrote the Constitution for a certain purpose. They wanted a government that would respect and protect the individual’s rights to life, liberty, property, and the pursuit of happiness. Aside from certain contradictions (the worst of which, toleration of slavery, required a bloody civil war to expunge), the Constitution is dedicated to protecting the individual from society by means of a limited government. The Supreme Court cannot objectively interpret the document’s language apart from this essential purpose.

Regrettably, however, too many of today’s judges reject this approach to constitutional interpretation.

Read the whole thing.

In my article, “Justice Holmes and the Empty Constitution,” I discussed the widespread doctrine that the Constitution’s underlying purpose—protection of individual rights to life, liberty, and property—has no legitimate role in interpreting the document’s language. I summarized this view, pioneered by Justice Oliver Wendell Holmes, Jr., in the early twentieth century and prevalent among judges today, as holding that “the Supreme Court presides over an empty Constitution—empty of purpose, of moral content, of enduring meaning—bereft of any embedded principles defining the relationship between man and the state.”

In recent hearings, Supreme Court nominee Elena Kagan confirmed her allegiance to this modern orthodoxy.

Kagan’s views came out under clumsy questioning from Sen. Tom Coburn, an Oklahoma Republican and religious conservative. Coburn’s questions mixed together several ideas: that individuals have natural rights—that those rights pre-exist the Constitution—that such rights are God-given—and that those rights include owning guns for self-defense.

Rather than try and untangle Coburn’s mish-mash of truth, falsehood, and controversial detail, Kagan used the knife of Holmesian orthodoxy to slice them away with a single stroke. Inquiries about man’s natural rights are irrelevant to her fitness for the Supreme Court, she testified, because they are “outside the Constitution and the laws.” As such, she told Coburn, “you should not want me to act in any way on the basis of such a belief.” Read the rest of this entry »

Writing in The Wall Street Journal, sports journalist Allen Barra has hailed the recent Supreme Court decision in American Needle v. NFL as “a clear victory for free enterprise.”

I want to leave aside the complex antitrust technicalities on which this decision hinged and just focus on what it means for enterprise to be “free.” Free from what? If the term has any objective meaning, it denotes freedom from coercion, from physical interference by others. So if Barra is correct about this court decision being a victory for freedom, it must mean that some coercive practice has been swept away. But was it?

Consider what led to the court case. All thirty-two teams in the National Football League formed an association (NFL Properties) that entered into a contract with Reebok, a manufacturer of sporting goods. In this contract, Reebok promised to pay NFL Properties licensing fees on the sales of headwear featuring team logos. In exchange, NFL Properties promised that Reebok would have exclusive licensing rights for ten years.

That contract was entered into freely. The court case featured no evidence that Reebok made physical threats against NFL Properties—or that NFL Properties made physical threats against Reebok—or that any of the member teams made physical threats against the others. Physical coercion was simply not an issue in the case. On the contrary, the Supreme Court’s decision to declare the contract illegal is itself coercive. It obliterates, by government force, the freedom in which the NFL-Reebok contract was conceived and written.

According to the decision’s supporters, the 32 teams who formed NFL Properties are now “free” to enter into individual contracts with American Needle. But when the teams actually had freedom, they chose differently. They chose to contract together, as an association, and they chose to contract with Reebok. Now that contract has been swept into the trash can, by force of law. The teams are, in fact, less free than they were before the Supreme Court decided their case. That’s anything but a “clear victory for free enterprise.”

Image: WikiMedia Commons

If John McCain had been elected in 2008, a woman’s legal right to procure an abortion would be in grave danger right now.

Remember, McCain ran for president on a campaign promise to select judges who agree that Roe v. Wade is “a flawed decision that must be overturned.” Before the 2008 election, there were already as many as four votes to overturn that decision (certainly Justices Antonin Scalia and Clarence Thomas, and possibly John Roberts and Samuel Alito). Now add the two successors that McCain would have selected (to replace retiring Justices David Souter and John Paul Stevens), and voila! A strong majority, ready to sweep aside Roe v. Wade, could be in place on the Court.

The fact that the nation has been spared such a “McCain Court” is perhaps the only reason to be glad that President Obama is in office at this critical juncture. To his credit, Obama made clear his support for abortion rights during the campaign. And just recently, speaking about the search for a successor to Justice Stevens, Obama said: “I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women’s rights.” Read the rest of this entry »

In choosing a successor to retiring Justice John Paul Stevens, President Obama is preoccupied with the Court’s recent decision in Citizens United v. Federal Election Commission. That’s the case upholding a corporation’s right to spend its own money speaking out during political campaigns.

Obama has made no secret of his disdain for that decision. Justice Stevens authored the dissent in that case—the dissent that Obama wishes had been the majority decision. Stevens argued at length for sustaining the power of campaign finance regulators to throttle corporate speech.

Speaking in the Rose Garden recently, Obama said he’s searching for “someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” In short, Obama wants Citizens United to be overturned, and he’s looking for a new Justice who will be as steadfast as Stevens was in opposing corporations’ rights. Read the rest of this entry »

“The censorship we now confront is vast in its reach,” wrote Justice Anthony Kennedy on behalf of a Supreme Court majority in Citizens United v. Federal Election Commission. He was referring to the speech bans that since 2002 have muzzled corporations under the McCain-Feingold campaign finance law.

No more. The Citizens United decision struck down the ban, not only liberating America’s corporations to speak out during campaigns but also unleashing a torrent of commentary, both praising and denouncing the Court’s actions. As the heated debate gets hotter, a timely panel discussion is slated for Tuesday, March 16, in Washington, D.C., hosted by the Ayn Rand Center for Individual Rights and the Institute for Justice.

“Citizens United and the Future of Campaign Finance Law” will feature a lively debate among three lawyers who filed briefs on opposite sides in the case, and an academic expert on the history of free speech. I’m fortunate enough to be moderating the event, which will review the case in historical context, evaluate its merits, and look to the future. One crucial issue on the table is whether such regulations should survive at all.

Read the rest of this entry »

“On Jan. 21, poor Justice Holmes must have turned in his grave.”

So writes Mimi Marziani in the National Law Journal, lamenting the Supreme Court’s decision in Citizens United v. FEC, issued on Jan. 21, 2010. That’s the controversial case holding that corporations have a right to speak out on political issues without being censored.

What’s the connection with Justice Oliver Wendell Holmes, Jr., who died back in 1935? Well, Holmes spent much of his long career arguing against the idea that the U.S. Constitution is a bulwark of liberty, a barrier to governmental infringements on individual rights. So Marziani is right that Holmes, if he were alive today, would have dissented in the Citizens United case—just as he dissented more than a century ago in the case forever associated with his name, Lochner v. New York. (In that 1905 case, the Court struck down a maximum-hours law for bakers.)

In fact, Marziani says, there’s a direct parallel between the two famous cases. Citizens United, she asserts, is “Lochner’s 21st century equivalent.” Why? Because both cases were driven by a conviction that the Constitution should be interpreted where possible to protect people against the awesome power of government to violate their rights. Along with Holmes, Marziani believes that the Constitution is agnostic on the relationship between individuals and the state. Read the rest of this entry »

The Supreme Court is wrestling with a case involving a state-funded program of beach sand replenishment that’s threatening the property rights of private beach owners. But the conflict that gave rise to this case should never have arisen at all.

The lawsuit was brought by owners of beachfront property in Florida whose deeds include the beaches themselves. (That’s not always the case—in some states, private ownership of beaches is forbidden by state governments that declare them all public property.) Like many states, Florida has a program of beach replenishment to compensate for erosion from hurricanes and natural wave action. These programs pay for powerful dredging machines to pump new sand onto the beach at public expense.

The plaintiffs in the case (called Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection) object to the program because the new strips of sand become public property—raising the specter of sunbathers and surfers parading between the plaintiffs’ private houses and the ocean’s waves. The landowners say that’s a “taking” of private property by eminent domain, requiring a money payment to compensate for the diminished value of a beach subject to public access.

Notice how the beach replenishment program creates an insoluble conflict between property owners and taxpayers. The property rights of beach house owners—who presumably paid a premium for their own private stretch of beach—are violated when a public beach can be grafted by government fiat onto the shorelines of their property. But the property rights of all Florida’s citizens are violated when their money is taken to pay for beach replenishment, which is no part of a government’s proper functions.  Read the rest of this entry »