Supreme Court

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Roe v. Wade: Forty Years Later [podcast episode #01]

Sunday, January 20, 2013 by

On January 22, 1973, the United States Supreme Court handed down the decision on the landmark case of Roe v. Wade. With a 7-to-2 majority vote, the court struck down state bans on abortion, prompting a national debate that continues forty years later.

That decision — as well the subject of abortion itself — remains divisive. Activists on both sides debate whether and to what extent abortion should be legal, how the Supreme Court shapes the law on issues of constitutionality, and the role of morality and religious views in the political sphere.

On this episode of Eye to Eye, ARI’s new podcast, hosts Jordan McGillis and Amanda Maxham sit down with Dr. Onkar Ghate, ARI’s senior fellow, and Tom Bowden, legal analyst, to discuss the political, legal and moral questions surrounding abortion.

Some of the topics covered include:

  • Ayn Rand’s view on abortion and the Roe v. Wade ruling
  • The legal basis for the Roe v. Wade decision
  • The state-level attempts to undermine Roe v. Wade
  • Abortion and individual rights
  • The labels “pro-life” and “pro-choice”
  • “Personhood” amendments
  • Ayn Rand’s view on the nature of sex
  • Health care, abortion, and contraception
  • Abortion and the Tea Party movement
  • The separation of church and state
  • The morality of abortion
  • Objective legal interpretation
  • The future of the Roe v. Wade decision

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Listen to or download this episode (Duration: 44:16 — 20.3MB)

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Posted in Culture, Government & Policy, Podcast

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An adventure in historical revisionism

Wednesday, November 23, 2011 by

The latest issue of George Mason Law Review, currently in the mail to subscribers (how quaint that sounds in this digital age), contains my review of an important new book on the landmark Supreme Court case of Lochner v. New York. The book is called Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, by David E. Bernstein, a professor at George Mason University School of Law.

I welcomed the opportunity to review Bernstein’s book because the Lochner case stands as an enduring symbol of the most important debate in American legal history. Do individuals have natural rights that government must respect, even when political majorities want to infringe upon them? The majority in Lochner said yes—but Justice Oliver Wendell Holmes, Jr., in a famous dissent, said no. In the century since that 1905 case was decided, legal thinkers have returned time and again to Holmes’s dissent, about which I have written at length elsewhere, to support the idea that judges must step aside and allow legislatures to write laws as if individuals have no rights that the majority must recognize.

Bernstein’s book is attracting attention from prominent legal scholars and commentators. Richard Epstein, professor of law at New York University, wrote in the Claremont Review of Books that Bernstein reaffirms a “classical liberal paradigm” that the Supreme Court should employ to “confess, and undo, its prior errors.” In Commentary, Glenn Reynolds—the University of Tennessee law professor and Instapundit guru—wrote: “The false narrative of Lochner has controlled the past for decades, but Bernstein’s clear and incisive work may wrest that control away and move us back to the truth.” And columnist George Will endorsed Bernstein’s argument that “Progressivism . . . is hostile to America’s premise that individuals possess rights that preexist government and are not fully enumerated in the Constitution.”

Rehabilitating Lochner has a limited purpose. It does not set out to resolve the fundamental question whether individuals have natural rights, nor does it even present Bernstein’s view on the matter. It is rather a work of historical revisionism, meant to clear out the nasty underbrush that has grown up around this oft-cited but little understood case. In my review, I summarize Bernstein’s achievement this way:

     Here, then, is the demythologized Lochner. It was a well-reasoned opinion based on strong precedent and time-honored judicial philosophy, not a textually absurd act of judicial malfeasance. It was a sincere attempt to uphold constitutionally protected liberty, not a cynical mask for prejudice. It resulted in the defense of individual liberty against power-wielding political pressure groups, not the surrender of defenseless individuals to callous Social Darwinism. And it was a progenitor of decisions that would recognize constitutionally protected rights in a variety of contexts, not a doctrinal plague-carrier to be exterminated by right-thinking scholars and judges.

It is books like this one that are laying the groundwork for a future in which America’s judiciary—and especially the Supreme Court—can intelligently assess its past conduct and chart a future course that’s consistent with the nation’s founding ideals.

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“The Constitution of Ayn Rand”?

Friday, June 10, 2011 by

Certain portions of the Patient Protection and Affordable Care Act—better known as Obamacare—“may violate the Constitution of Ayn Rand, but they do not violate the Constitution of the United States.” So said Acting Solicitor General Neal K. Katyal on Wednesday, defending Obamacare before a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit.

Whoa. Let’s slow down.

As everyone knows, there’s only one U.S. Constitution. So Katyal’s reference to “the Constitution of Ayn Rand” is obviously a rhetorical device—but for what end? For the purpose of reviling through mockery a certain view of the Constitution’s nature and purpose, a view championed not only by Ayn Rand but by the Founding Fathers themselves.

Rand held that the Constitution’s purpose was and is the protection of individual rights to life, liberty, property, and the pursuit of happiness. Although she was not a constitutional scholar and never originated a theory of legal interpretation, she knew as a matter of history and political philosophy that the Constitution embodies a certain view of the relationship between the individual and the government. In her article “The Nature of Government,” she wrote:

Today, when a concerted effort is made to obliterate this point, it cannot be repeated too often that the Constitution is a limitation on the government, not on private individuals—that it does not prescribe the conduct of private individuals, only the conduct of the government—that it is not a charter for government power, but a charter of the citizens’ protection against the government.

Elsewhere in the same article, she said:

A complex legal system, based on objectively valid principles, is required to make a society free and to keep it free—a system that does not depend on the motives, the moral character or the intentions of any given official, a system that leaves no opportunity, no legal loophole for the development of tyranny.

The American system of checks and balances was just such an achievement. And although certain contradictions in the Constitution did leave a loophole for the growth of statism, the incomparable achievement was the concept of a constitution as a means of limiting and restricting the power of the government.

Expanding on Rand’s view, I wrote the following in an op-ed for the Christian Science Monitor:

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. Instead, they follow the path marked out by Justice Oliver Wendell Holmes, Jr., who sat on the Supreme Court from 1902 to 1932. “All my life I have sneered at the natural rights of man,” Holmes wrote, reflecting his view that the individual rights venerated by the Founders have no objective validity and therefore no role in discerning the Constitution’s meaning.

Judges may harbor personal opinions on man’s rights, Holmes conceded, but such notions have “nothing to do with the right of a majority to embody their opinions in law.” Holmes’s view directly contradicts that of James Madison, the Father of the Constitution, who reviled unlimited democracy as “incompatible with personal security or the rights of property.”

Unfortunately, for more than a century, the Supreme Court has interpreted the Constitution without regard to the principle of individual rights. As a result, a statute like Obamacare—which contains wholesale violations of the rights of doctors, patients, and insurance companies—could sail through Congress without much worry that the courts will bar the way.

We can now see more clearly the purpose behind Katyal’s sarcastic reference to “the Constitution of Ayn Rand.” Even though virtually all the case law is on his side—even though the courts have given Congress carte blanche to rule the economy—Katyal realizes there’s a stubborn individualism in America that refuses to lie down in submission while a juggernaut like Obamacare rolls over them. Because Ayn Rand has actually articulated and defended the moral basis of this American ideal, she stands out as the symbol of what Katyal wants to warn against. By singling her out, Katyal is reminding the judges that the American ideal of individual rights is none of their concern—that the Supreme Court regards the Constitution’s purpose as irrelevant to interpreting its language—that the judges’ job is to rubber-stamp Obamacare and not worry about its victims.

The judges on the Eleventh Circuit, who are duty-bound to follow Supreme Court precedent, will not be breaking new ground in the realm of constitutional interpretation. But if some future Supreme Court were to move the judiciary toward a more objective approach, those justices would not be enforcing some imaginary “Constitution of Ayn Rand.” They would be enforcing the one and only Constitution of the United States, that often misunderstood yet precious gift of our freedom-loving forebears.

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How public land enables injustice

Wednesday, March 9, 2011 by

In a post last August, I commented on the Supreme Court case of Snyder v. Phelps. Now the Court has decided that case, in a way that highlights the importance of the point I was making.

First, here’s a passage from the majority opinion, which upheld the First Amendment rights of obnoxious picketers at a military funeral:

On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers  carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is doomed,” “Don’t Pray  for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”

The italics in that quotation are mine. I wanted to highlight the undisputed fact that the protestors were able to get close to the funeral only by using public land. Here’s what I said in last year’s post on this issue:

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.

Of course, there’s no guarantee that a funeral home in a fully privatized society could obtain the necessary contractual agreements from surrounding landowners. And that might figure into any given funeral home’s success or failure. A home that caters, say, to Hollywood funerals for celebrities had better have good contractual arrangements for privacy if it wants to make an appealing pitch for business. But another home might expect customers to take the risk of disruption from adjacent land, which risk could exert a downward pressure on price. The bottom line is that in a free society, obnoxious picketers such as the Westboro clan would have to obtain the voluntary agreement of private landowners in order to inflict their particular brand of emotional distress upon others.

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Interpreting the Constitution objectively

Thursday, January 20, 2011 by

For several decades now, legal professionals have been debating how best to interpret the Constitution. One school of thought touts the “living Constitution” whose meaning changes over time as new “social realities” arise. Another school of thought, “originalism,” holds that the document means what it was understood to mean when ratified.

Each viewpoint has its detractors. Opponents of the living Constitution argue that it eviscerates the rule of law by granting unelected judges the power to legislate. Opponents of originalism, on the other hand, object to the idea that twenty-first century Americans must be shackled to the erroneous, outdated knowledge of men who lived hundreds of years ago.

What has been missing from this debate is any suggestion of a workable theory that avoids both types of objection. So far, no one has offered a method by which judges can objectively adhere to the drafters’ original words, while simultaneously taking account of all the moral and scientific progress that has occurred since the Constitution and its various amendments were ratified.

That situation may be improving, however, thanks to the efforts of a professor of philosophy at the University of Texas, Tara Smith. In an article for the journal Constitutional Commentary, Dr. Smith offers a philosopher’s perspective on the debate and points the way toward a new theory that promises to resolve the dispute permanently.

Originalism, she writes, is an “impressively resilient doctrine” that is ultimately untenable. Why? Because it assumes that “words lack objective meaning,” and therefore the best judges can do is discover “the historical fact of what the understanding of particular words was at the time of the law’s enactment.”

Smith trains a philosophical spotlight on this originalist argument, bringing to bear the insights of epistemology, the science of knowledge. Originalism is mistaken, she asserts, in supposing that words lack objective meaning. “Concepts are objective,” she states—a big, controversial statement that introduces a lucid discussion of Ayn Rand’s Objectivist epistemology and how it can be applied to the problem of interpreting legal language.

Just to mention one of many examples, she discusses why the concept “religion” in the First Amendment, objectively interpreted, includes Mormonism—even though that sect had not been conceived when the First Amendment was ratified in 1791. Although other philosophers and legal scholars have discussed epistemology with regard to such questions, Smith’s work stands out by virtue of its unique application of Rand’s theory. Smith’s overarching theme is fully stated in her article’s title: “Originalism’s Misplaced Fidelity: “Original” Meaning Is Not Objective.”

Smith makes no claim to have articulated a full theory of legal interpretation, characterizing her article “only a step in that direction.” Even so, her article is packed with far more insights than a single blog post could possibly indicate without verging upon the facile. Those with a serious interest in constitutional interpretation should lay their hands on Smith’s article and read it thoroughly.

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A look back: Oil spill, Kagan, Obamacare, Property Rights

Friday, December 31, 2010 by

With a new year approaching, we looked back at some of the topics we discussed on VFR since the blog was launched. Here, we highlight a few of our favorite VFR posts that you may enjoy revisiting (or reading for the first time, if you’re a new reader).

Posts by Tom Bowden.

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Posted in Business & Economics, Government & Policy

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Those who trespass against us

Thursday, August 5, 2010 by

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.

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Kagan’s updated Declaration of Independence

Thursday, July 29, 2010 by

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.)

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Elena Kagan: could she defend the Constitution’s purpose?

Tuesday, July 20, 2010 by

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.

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Elena Kagan and the empty Constitution

Friday, July 16, 2010 by

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 »

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