Justice Oliver Wendell Holmes Jr., Individual Liberty, and the Constitution

Damon W. Root | June 23, 2009

The latest issue of The Objective Standard features a long and very interesting article by Thomas Bowden examining the jurisprudence of Supreme Court Justice Oliver Wendell Holmes Jr. In particular, Bowden focuses on Holmes' famous dissent in Lochner v. New York, the 1905 case where the Supreme Court nullified the maximum working hours provision of New York's Bakeshop Act as a violation of liberty of contract. As Justice Rufus Peckham held for the Court, the "real object" of New York's ban on bakery employees working more than 10 hours per day or 60 hours per week was "simply to regulate the hours of labor...in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employee." While genuine health and safety regulations are constitutionally permissible, Peckham wrote, the hours provision of the Bakeshop Act "is not, within any fair meaning of the term, a health law."

In dissent, Holmes took a different view, arguing that what mattered was the majority's unfettered ability to impose its will through law, not the judicial protection of individual rights. "I think that the word 'liberty' in the 14th Amendment," he explained, "is perverted when it is held to prevent the natural outcome of a dominant opinion, unless...the statute proposed would violate fundamental principles as they have been understood by the traditions of our people and our law." Sneering at the idea that the Constitution protects individual economic liberty, Holmes maintained, "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," a reference to the English libertarian theorist and his most celebrated book.

But as Bowden points out in his article, the Constitution is on the individual's side:

In order to mock "liberty of contract" as nothing more than a reflection of the majority's tastes in popular reading, Holmes had to evade large swaths of evidence tending to show that the Constitution indeed embodies a substantive commitment to individual liberty. In the Declaration of Independence, the Founders clearly stated their intent to create a government with a single purpose—the protection of individual rights to life, liberty, and the pursuit of happiness. Consistent with the Constitution's Preamble, which declares a desire to "secure the blessings of liberty to ourselves and our posterity," every clause in the Bill of Rights imposes a strict limit on government's power over individual liberty and property. In addition, Article I forbids the states to pass any law "impairing the obligation of contracts." And to prevent future generations from interpreting such clauses as an exhaustive list, the Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Rest here.

It's also worth noting that the mainstream version of the Lochner story, which pits evil bosses against long-suffering workers, doesn't exactly match the historical evidence. As George Mason University law professor David Bernstein has carefully and exhaustively documented, the origins of the Bakeshop Act lie in part in an economic conflict between unionized bakers who labored in large shops and their non-unionized, mostly immigrant competitors who worked in small, old-fashioned bakeries. As Bernstein wrote in the Washington University Law Quarterly (footnotes removed):

Union bakers believed that competition from basement bakery workers drove down their wages. An article in the bakers' union's weekly newspaper, the Bakers' Journal, condemned "the cheap labor of the green hand [a euphemism for recent immigrants] from foreign shores" that, along with long hours and competition from underpaid apprentices, "has driven countless numbers of journeymen [bakers] into other walks of life, into the streets, the hospitals, alms houses, insane asylums, penitentiaries and finally death through poverty and desperation." A ten-hour day law would not only aid those unionized bakers who had not successfully demanded their hours be reduced, but would also help reduce competition from nonunionized workers.

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Ample Bosoms|6.23.09 @ 2:08PM|#

State Department spokesman Ian Kelly said on Monday that Iranian diplomats are still welcome to attend Fourth of July parties at U.S. embassies around the world:

"There's no thought to rescinding the invitations to Iranian diplomats," Kelly said. "We have made a strategic decision to engage on a number of fronts with Iran. And -- and we tried many years of isolation, and we're pursuing a different path now."

Fox News's Major Garrett asked the president at the ongoing press conference if that is still the case. Obama replied, "I think that we have said that if Iran chooses a path that abides by international norms and principles, we are interested in healing some of the wounds over the last 30 years of U.S. Iranian relations. ... that's a choice the Iranian" government will have to make.

Does that mean there's a deadline by which the Iranian militias need to stop shooting innocent women in the streets in order to enjoy the July 4th barbecues?

This is Russia invades Georgia redux. Obama flails for a few days and finally gets the rhetoric where it should have been from day one. If speaking forthrightly is right today, why was it not right four days ago? If speaking forthrightly would endanger allegedly greater interests, why speak today? If speaking forthrightly would enable the mullahs to make the United States the issue, why speak today?

The intellectual and moral incoherence of Obama's pronouncements is staggering. Today he decides to join Merkel, Sarko, et al in expressing concern for the brave Iranians fighting for their freedom with his customary swagger. We should not just sit back and say better late than never. We should see the dangers of a soulless president whose limited foreign policy instincts are all wrong, who refuses to discuss the consequences of murder with a Bush-like swagger and who's so stubborn and rigid he won't even rescind an invitation to a barbecue. It's a shame he didn't stick to reading the great Urdu poets.

Alan Vanneman|6.23.09 @ 2:14PM|#

Yeah, life was so much better back in '05, when you were "free" to work a 72-hour week hefting 40-pound bags of flour. Damn that Oliver Wendell Holmes! Damn him and his damn moustache!

|6.23.09 @ 2:17PM|#

Anyone else having a daydream about a world where liberals still gave a crap about countering the tyranny of the majority?

|6.23.09 @ 2:21PM|#

Holmes is entirely overrated as a thinker. He was not an intellectual giant by any means. Although he may not have been a few fries short of a happy meal, one should not confuse him with Lysander Spooner or H.L. Mencken or John Stossel or Edwin Vierra or Ron Paul. In fact, Holmes was downright pedestrain.

MNG|6.23.09 @ 2:22PM|#

SF
Holmes was a GOP appointee!

|6.23.09 @ 2:22PM|#

It's their majority and their tyranny. I'm thinkin maybe not.

MNG|6.23.09 @ 2:23PM|#

LM
I know it was unintentional, but your favorably comparing John Stossel to Holmes made me laugh so hard I nearly shit myself. Well done!

|6.23.09 @ 2:23PM|#

In addition, Article I forbids the states to pass any law "impairing the obligation of contracts."

This has roughly nothing to do with freedom to contract.

Holmes was a GOP appointee!

And the Dems favored slavery.

|6.23.09 @ 2:29PM|#

"But a Constitution is not intended to embody a particular economic theory."

198 US 45, 75.

Just brilliant. Any person, let alone a jurist regarded as some kind of intellectual wunderkind by the chattering classes and the ignoratti, who asserts the above, is a moron.

MNG|6.23.09 @ 2:30PM|#

Tulpa
Excellent point in your first post.

As to your second one, you help me make my point. Trying to disparage today's liberals (or conservatives or whatever) by pointing to what someone in 1905 did or said is silly. Whatever else he may have been, Holmes was and is not a contemporary liberal.

LM
What economic theory do you think our Constitution expounds?

|6.23.09 @ 2:32PM|#

MNG-

We have lots of evidence to support the proposition that Holmes was not the brightest bulb in the chandelier. In contrast, we do not have so much evidence to support the proposition that Stossel is not of sturdy intellectual timber.

|6.23.09 @ 2:36PM|#

MNG, first, we should dispense with the utter nonsense that "a constitution does not embody [some] economic theory." Let's start there, agreed?

MNG|6.23.09 @ 2:36PM|#

LM
You have lots of evidence that Holmes reached judicial decisions you don't like. That ain't the same as saying he wasn't brilliant.

Have you ever read his "Common Law?" That dude was a smarty-pants for sure...

|6.23.09 @ 2:37PM|#

"one should not confuse him with Lysander Spooner or H.L. Mencken or John Stossel..."

I didn't take this as a favorable comparison.

MNG|6.23.09 @ 2:38PM|#

No, I'm afraid we can't start there, as I think the comment is obviously true! I see no economic theory behind our Constitution...

the innominate one|6.23.09 @ 2:40PM|#

Dems of the past favored slavery. They jumped ship to the Republican party (Strom Thurmond, anyone?)

great thinkers:

Ron Paul: yes

John Stossel: no

|6.23.09 @ 2:40PM|#

Substantive due process was used to "read into" the Constitution something that is not expressly written in, i.e., the freedom to contract. This is the same theory that gave us the right to privacy and eventually Roe v. Wade.

|6.23.09 @ 2:41PM|#

John Stossel a big thinker? The same guy who in the Reason 60 Minutes illustrated how much money was being spent on stimulus by throwing cash in the air?

MNG|6.23.09 @ 2:45PM|#

Timmy|6.23.09 @ 2:48PM|#

just a matter of degree, MNG

Timmy|6.23.09 @ 2:52PM|#

it endorses the power of government to take private property as long as it gives compensation...

1) Pay fair market value to the owner of a home sitting in the only viable path to build a road through a swamp between two towns . . .

2) Pay below fair market value to buy out a low-income neighborhood to then re-sell the property at discounted values to a private enterprise in the hopes of increasing the tax base for a community.

In general, libertarians will view only one of those to be valid in both the letter and spirit of the constitution.

|6.23.09 @ 2:53PM|#

"taxes are the price we pay for a civilized society"
-Holmes

Sounds like a staunch Republican to me.

Funny from Holmes wikipedia entry:

and is commonly recognized as one of the greatest justices of the U.S. Supreme Court.[citation needed]

MNG|6.23.09 @ 2:54PM|#

Holmes did not buy substantive due process. If you don't buy that it is very hard not to get his opinions in Lochner, Buck, etc. There is no explicit "right to contract" or "right of bodily autonomy" in the Constitution...

Citizen Nothing|6.23.09 @ 2:54PM|#

"No libertarian today would write such a document."
Fuckin' A, MNG. (And you forgot about slavery.)
The constitution at best was a weak compromise.

MNG|6.23.09 @ 2:56PM|#

He was an incredibly staunch Republican SF. He hated the Democratic Party with a passion (back then folks in the North like him thought of their buddies that had been killed by Democrats in the Civil War)

Citizen Nothing|6.23.09 @ 3:01PM|#

"Anyone else having a daydream about a world where liberals still gave a crap about countering the tyranny of the majority?"
What are you, SF, 102 years old? I certainly can't remember such a time.

|6.23.09 @ 3:02PM|#

Yeah, life was so much better back in '05, when you were "free" to work a 72-hour week hefting 40-pound bags of flour. Damn that Oliver Wendell Holmes! Damn him and his damn moustache!

Perhaps you have never worked 72 hour weeks, Alan. I, OTOH, certainly worked many of them without overtime compensation. My evil slavedriving employer happened to be the U.S. Government (U.S. Navy, port and starboard watch rotation [that's 84 hours right there] with additional labor for unreps and paperwork).

I know. I have no reason to complain because I fucking volunteered for that job, right?

Anyone else having a daydream about a world where liberals still gave a crap about countering the tyranny of the majority?

Yeah, me.

|6.23.09 @ 3:07PM|#

He hated the Democratic Party with a passion (back then folks in the North like him thought of their buddies that had been killed by Democrats in the Civil War)

Can't even take your own advice.

Trying to disparage today's liberals (or conservatives or whatever) by pointing to what someone in 1905 did or said is silly.

Holmes was a huge fan of state power over the individual. Holmes came from a abolitionist family and was generally considered a progressive politically. Sputter and spit all you like, but modern liberals lionize Holmes for a reason... he was one of them.

I know you love to claim Dems = Liberals / Dems =/= Liberals when it suits you, just like you like to confuse libertarianism and anarchy when it you can score points, but to try and argue that Holmes in a modern context wouldn't be considered a liberal is just disingenuous.

|6.23.09 @ 3:09PM|#

What are you, SF, 102 years old? I certainly can't remember such a time.

I said daydream, not remember. For example, I can daydream of a Hit N' Run free of trolls, but that doesn't mean I remember such a time.

|6.23.09 @ 3:11PM|#

"Holmes was a huge fan of state power over the individual."

Holmes was a complete turkey, but I think it is more accurate to say that Holmes was a fan of the legislative process over individual choice. I know its a nuance, but "state power" suggests no democratic input.

Elemenope|6.23.09 @ 3:12PM|#

The only economic system explicitly endorsed by the Constitution is forced labor through the ownership of persons.

So, yeah, the Constitution does "explicitly endorse an economic system". Just not one any sane or ethical person would think twice about countenancing. And in any case, that little bug was fixed with the civil rights amendments.

MNG|6.23.09 @ 3:13PM|#

Liberals lionize Holmes because of his free speech jurisprudence, and they also dislike a lot about him too (e.g., check out Stephen Jay Gould's stuff on him).

I'm very dubious whether he would have liked liberals. He didn't even care that much for the Progressives of his day, much less our day.

But thanks for giving us liberals abolition!

|6.23.09 @ 3:16PM|#

I know its a nuance, but "state power" suggests no democratic input.

All that would mean is that he's inconsistent. The power of majority is bad in the case of the non-union bakers, but it's just peachy keen when wielded by the government? "Consent of the governed" covers all sorts of evil in a rich, buttery frosting.

|6.23.09 @ 3:18PM|#

But thanks for giving us liberals abolition!

I have no doubt that liberals are against chattel slavery... if they only had a problem with other forms of that peculiar institution my interests might align with them more often.

Elemenope|6.23.09 @ 3:19PM|#

...to try and argue that Holmes in a modern context wouldn't be considered a liberal is just disingenuous.

I'm pretty sure that the Bell decision would decisively exclude him for any modern political category. Which is why MNG has a point; take any public person from any period that is not this period, and the only way you'll be able to fit them in a modern political category is to ignore significant aspects of the person's beliefs/actions or significant aspects of the modern political category.

...just like you like to confuse libertarianism and anarchy when it you can score points...

FWIW, I've never read MNG as doing this.

Citizen Nothing|6.23.09 @ 3:22PM|#

I daydream about a world where liberals still lionize free speech.

zoltan|6.23.09 @ 3:25PM|#

Tulpa | June 23, 2009, 2:23pm | #

Holmes was a GOP appointee!

And the Dems favored slavery.

Both of you need to quite with this queer, polarizing bullshit.

|6.23.09 @ 3:28PM|#

FWIW, I've never read MNG as doing this.

He did in the Constitution post. A small, restrained Federal government could easily intervene in conflicts between the state over commerce without being tyrannical. Common defense is not un-libertarian, even a little general welfare here and there would be OK. Due process? Even a super-limited form of a takings clause? These are not libertarian hobbyhorses. Anarcho-capitalists would object, and libertarians object with the modern interpretations of those ideas, but the Constitution itself doesn't set up a prima facie un-libertarian nightmare state.

The Angry Optimist|6.23.09 @ 3:30PM|#

it grants a broad power "to regulate" Interstate Commerce

Not originally. It was only through FDR's internal use of soft power and piss-poor reading comprehension that the Commerce Clause is the exception that swallows Federalism whole.

The Angry Optimist|6.23.09 @ 3:31PM|#

El - I'm with SF: MNG, in his 2:45 post, is conflating libertarianism with anarchism.

|6.23.09 @ 3:32PM|#

"The power of majority is bad in the case of the non-union bakers, but it's just peachy keen when wielded by the government?"

I think the argument would be more like "Holmes believed in the legislative process over judicial rule making."

I don't buy it, but that's the argument.

MNG|6.23.09 @ 3:32PM|#

My point is that the Constitution does not have a "super-limited form of a takings clause." And it has the kind of broad due process and interstate commerce which we would not expect of a libertarian.

I mean really SF, if you were writing it today would you give the federal government the power "To regulate commerce (period) among the several states?"

MNG|6.23.09 @ 3:34PM|#

TAO
It can't get much more broad than "The Congress shall have power . . . To regulate!"

MNG|6.23.09 @ 3:35PM|#

TAO
You, as a libertarian, would give the federal government the power "To regulate commerce with foreign nations", with no limitations or qualifications?

I don't have to conjure up your wacky cousins (anarchists) to prove this point. The Constitution is not a very libertarian document.

Citizen Nothing|6.23.09 @ 3:36PM|#

I'd make each slave count as at least 5/8ths of a person.

The Angry Optimist|6.23.09 @ 3:37PM|#

any Constitutional scholar will tell you that the underpinnings of, indeed, the entire point of, the Constitution is to institute a federalist system of governance. Full stop.

Reading the Commerce Clause to mean "Congress can basically do whatever the hell it wants" is anathema to the point of the Constitution. Ergo, it is not the proper read of the Commerce Clause.

Citizen Nothing|6.23.09 @ 3:38PM|#

Come the revolution, MNG, I'll remember that "wacky cousins" remark. You've been warned.

Timmy|6.23.09 @ 3:38PM|#

And it has the kind of broad due process and interstate commerce which we would not expect of a libertarian.

No, there are supreme court rulings that say the constitution says things it does not say -- See public use verus public purpose.

MNG|6.23.09 @ 3:38PM|#

In the very Buck case, at the state supreme court level of the case, the court drew heavily on precedent having to do with administrative bodies that deprived people of their property by regulating the subjects of their livelihood. The court noted that, hey, as long as a fair process with notice and a hearing were given to you, the government could do that kind of thing all day long. And they are right, the due process clause broadly endorses taking away liberty, property and even life as long as these processes are there. If you want to defend that as libertarian, go right ahead...

Citizen Nothing|6.23.09 @ 3:39PM|#

Actually, I'm not an anarchist. But that fact makes me very uncomfortable.

MNG|6.23.09 @ 3:40PM|#

I'm not talking about Wickard here TAO. Let's limit it to a narrow idea of what falls into "interstate commerce." Now, do you deny that the clause gives the government broad power "to regulate" in this area?

For example, one use of the power pre-Wickard was to outlaw interstate sale of lottery tickets. That is CERTAINLY under the text of the clause. And yet, not very libertarian, eh?

|6.23.09 @ 3:42PM|#

My point is that the Constitution does not have a "super-limited form of a takings clause."

Understood as plain English, the takings clause is quite a bit more limited than the current practice and SCOTUS interpretations. Public "use" v. public "purpose" and all that.

And it has the kind of broad due process and interstate commerce which we would not expect of a libertarian.

Since when is broad due process not libertarian? As for interstate commerce, again, this clause has been bastardized and expanded far beyond its intended purpose. I'll give the Founders a hit for not including some limiting language on the clause to restrain their power-mad descendants, but no one would argue that, as originally drafted and applied for 150 years, it was not a broad grant of near-plenary economic power to the feds.

MNG|6.23.09 @ 3:42PM|#

By broad I'm not talking about the category of things that are "interstate commerce", I'm talking about the blunt "has the power to regulate" no qualifications, restrictions, etc. part.

The Angry Optimist|6.23.09 @ 3:43PM|#

No, actually, I would argue that that example is not under the Commerce Clause. I believe that a proper application of the Clause can be found in the Supreme Court's Dormant Commerce Clause cases. I think that the definition of "regulate" was "to bring order, method and/or uniformity" NOT "to govern or direct".

"Regulating" interstate commerce means prescribing rules that facilitate interstate commerce.

MNG|6.23.09 @ 3:44PM|#

RC
By broad re due process I mean a broad power of the government to deprive people in those three areas as long as due process is given.

"I think that the definition of "regulate" was "to bring order, method and/or uniformity" NOT "to govern or direct"."

That's sweet. But the text implies a much broader view.

Barry Loberfeld|6.23.09 @ 3:45PM|#

Equally corrupt, however, is this fiction that majoritarian democracy embodies the "manifest tenor" of the Constitution. Progressives and conservatives alike peddle this ideology (again, when it serves their respective purposes) for the same reason that, as Madison explained, the Constitution rejects it: "[T]here is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies ... have ever been found incompatible with personal security, or the rights of property...." But contrast this with Bork, who begins by concurringly quoting G.K. Chesterton, a previously underappreciated touchstone of American constitutional exegesis: "What is the good of telling a community that it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." Now there is no way to miss the parallels between this statement and those of Breyer and Dionne, but Bork himself comments, "The makers of our Constitution thought so too, for they provided wide powers to representative assemblies and ruled only a few subjects off limits by the Constitution." Indeed, they did? Observe how Bork, unable to find an echo of Chesterton in the words of either the Framers or the Constitution itself, hears it in what he believes to be the structure of the Constitution. But does that structure sound that note?

To answer these questions, let us turn to, not Madison, but the Framer who may be considered the most congenial to Bork and the Bork Left: Hamilton. Bork here is claiming that the body of the Constitution says GOVERNMENT CAN DO ANYTHING, with the Bill of Rights adding EXCEPT THESE THINGS. Yet recall Hamilton's objection to the Bill of Rights: It "would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" In other words, we didn't need the EXCEPT THESE THINGS because the Constitution doesn't say GOVERNMENT CAN DO ANYTHING. With the inclusion of the Bill of Rights -- more a reinforcement than a redundancy -- our Constitution doubly protects individual liberties from majoritarian ("representative") violation. The Bork-Breyer disinterpretation of the Constitution is the very "colourable pretext" Hamilton feared. It is the macabre transformation of Madisonian liberal republicanism into Rousseauian totalitarian democracy.

READ THE WHOLE STORY.

MNG|6.23.09 @ 3:46PM|#

See, you're proving my point here. Were you writing it you would put "the Congress shall have power to regulate interstate commerce for the purposes of bringing order, method and/or uniformity but not to govern or direct."

Which, as I said, is sweet and all, but the text we haves don't say that...Those dead white guys could be pretty specific with the qualifying stuff when they wanted to, they didn't want to there.

MNG|6.23.09 @ 3:50PM|#

How many people think if we looked up the word "regulate" in the dictionaries of 1789 it would say "facilitate?" I bet it would be closer to "control, supervise, etc., through the making of laws and rules etc...

|6.23.09 @ 3:51PM|#

I thought "regulate" meant to beat somebody up over minor provocation.

MNG|6.23.09 @ 3:52PM|#

You guys are libertarians. If the SCOTUS did not have the doctrine elaborated in Kelo would you be like "yay, eminent domain?" I mean, were it to read the takings clause as recquiring a definite public use as opposed to purpose you would think that was a libertarian clause? That the government could take anyone's property anywhere as long as they made a definite public use of it?

I mean, c'mon, stop pulling us non-libertarian's legs!

The Angry Optimist|6.23.09 @ 3:55PM|#

no, MNG, you're just incorrect in this. As a matter of fact, Wickard admits that my interpretation is far closer to what was originally intended than yours.

Again, your read not only destroys federalism, but it also means that Lopez and Morrison were wrongly decided, which I know for stone-cold fact you don't believe.

|6.23.09 @ 3:58PM|#

Eminent domain with payment for the property is in a more libertarian direction than eminent domain with a bullet in your head.

Elemenope|6.23.09 @ 3:59PM|#

I thought "regulate" meant to beat somebody up over minor provocation.

Generally this also implies a spree and some major hardware.

The Angry Optimist|6.23.09 @ 4:01PM|#

again, while most of us might not be particularly pleased with the prospect of eminent domain, the fact remains that we can mostly get on board with "if you have to have it, make sure that it is solely used to build things in which the government is properly involved", i.e. infrastructure and air/army bases. Kelo basically enshrined the notion of the Five-Year Plan into the Constitution.

|6.23.09 @ 4:01PM|#

What economic theory do you think our Constitution expounds? - MNG @ June 23, 2009, 2:30pm

I think a good case could be made that the Constitution's economic powers were inspired by the Whigs, if not by the Radical Whigs. In some sense, we libertarians are the Whigs' intellectual descendants, without all that nasty ,i>slavery, of course.

Barry L's disquisition touching on Judge Bork's quotation of Chesterton amused me. GKC was a nut for Distributism, which would have made the free marketers in the Republican party very uneasy. Me, too.

Kevin

Fluffy|6.23.09 @ 4:12PM|#

Screw talking about Wickard, I would argue that Gibbons vs. Ogden was incorrectly decided - or rather that it was correctly decided but incorrectly argued by Marshall.

|6.23.09 @ 4:22PM|#

I've seen this idea that the Constitution if libertarian friendly, but I don't think that dog will hunt. As I've noted before it grants the federal government the power to tax and spend as long as the spending is on the common defence or general welfare (the Spending Clause)

What do you think general welfare means? Anything that the government says is good? good for who? compared to how many people it harms? I imagine there was quite a lot of disagreement over degree - even when the phrase was written. I don't think this text is inherently libertarian or not.

it grants a broad power "to regulate" Interstate Commerce;

These days, every act which concievable could cross state lines or move electrons across state lines is covered by this clause - don't pretend the scope of this has not been expanded by many orders of magnitude past what it originally meant

it endorses the power of government to deprive citizens of life, liberty and property as long as due process is given;

Due process does not mean a kangaroo court

it endorses the power of government to take private property as long as it gives compensation...Perhaps more importantly it provides very little restrictions on what the respective state governments could do to a person's liberty and property.

Except that it said public use - even that has been altered materially extraconstitutionally. It also restricted states through the 14th - a restriction which was practically vacated and has only been reinstated piecemeal.

No libertarian today would write such a document.

Nope - but the intent was clearly far more libertarian than the modern interpretation.

alan|6.23.09 @ 4:32PM|#

Citizen Nothing | June 23, 2009, 3:38pm | #

Come the revolution, MNG, I'll remember that "wacky cousins" remark. You've been warned.

I've already promised MNG the third order lunch ration ticket (extra shake of salt in Thursday's gruel) for something nice and witty he said a year ago. However, beyond that, he is all yours.

|6.23.09 @ 4:35PM|#

I mean really SF, if you were writing it today would you give the federal government the power "To regulate commerce (period) among the several states?"

No, I wouldn't... but that doesn't mean I think the Federal government shouldn't have some power to solve disputes among the state's before economic or actual war broke out between them.

IHSIBAIWSIA... just because the Framer's didn't over-specify with legalese and dozens of dependent clause everything they wrote means that any interpretation from the left or the right is automatically valid.

A properly understood and applied Constitution (i.e. reading it as a document about what rights the government can take away, not what rights the government are granting us) would give you a country closer to Libertopia than any other society in the world can now claim.

|6.23.09 @ 4:38PM|#

I can haz subject verb agreement?

|6.23.09 @ 4:52PM|#

A properly understood and applied Constitution (i.e. reading it as a document about what rights the government can take away, not what rights the government are granting us) would give you a country closer to Libertopia than any other society in the world can now claim.

Quote For Motherfucking Truth, SugarFree.

guy|6.23.09 @ 4:52PM|#

The Supreme Court has played bitch to the other two branches since the 40's. We need a 4th branch just to keep the first three in line.

hmm|6.23.09 @ 4:55PM|#

The people? More specifically pissed off people waving guns? Just a thought.

A properly understood and applied Constitution ...

That's not going to happen anytime soon.

MNG|6.23.09 @ 5:19PM|#

TAO
You are missing the point BIG time. Please read my 3:40 again.

You want to read the category of what falls into interstate commerce narrowly. I get that. My point is that whatever falls into that category the clause explicitly gives the feds the "power to regulate" that, period. THAT is what is broad about it, and that is textual, not case law.

Fluffy|6.23.09 @ 5:31PM|#

You want to read the category of what falls into interstate commerce narrowly. I get that. My point is that whatever falls into that category the clause explicitly gives the feds the "power to regulate" that, period. THAT is what is broad about it, and that is textual, not case law.

OK, I see what you're getting at here.

Since libertarians would want neither the states nor the federal government to have the power to regulate interstate commerce, a government that denies the states that power but gives it to the federal government is to that extent non-libertarian. However narrowly the power is construed.

That's true, and fair. The Constitution is not a perfect document. Libertarians can get too reflexive about defending all of its aspects, when some of them are clearly indefensible.

The Angry Optimist|6.23.09 @ 5:33PM|#

No, sorry, still not the right reading. Look, I don't know where to point you, but the term regulate in that context was not meant "with a concomitant power to ban". It just wasn't.

MNG|6.23.09 @ 5:35PM|#

Again, what I am referring to as broad is NOT SCOTUS's reading of the "interstate commerce" part so broadly, it is the textual grant of power "to regulate." That grant is pretty open ended.

"Due process does not mean a kangaroo court"

What does this have to do with anything? A great deal of due process cases are regulatory. What I mean is that the deprivations involved in those cases get the Constitution's explicit blessing as long as there was certain basic processes.

MNG|6.23.09 @ 5:38PM|#

Look at the Slaughterhouse cases, or the Lochner case, both of which interest libertarian writers and scholars a great deal. Now the libertarian position taken in the dissent in the former and the majority in the latter, were grounded NOT in any explicit provision of the Constitution, but in "substantive due process." There is a reason for that: the provisions of the Constitution simply cannot give you the libertarian outcome there. Face it.

MNG|6.23.09 @ 5:41PM|#

TAO
The plain meaning of "to regulate" back in that day mind you, included power to prohibit. And THAT is what the text says.

I get what you are arguing, that the "legislative intent" or "expectation" of the Framers did not include this pretty straightforward reading of the actual word they used, but alas they used the words they did. What's a court to do? Guess at what they "really" meant by this word, or give the word its plain meaning (at the time)?

The Angry Optimist|6.23.09 @ 5:42PM|#

I do not believe that it is the proper reading to equate "regulate" in the foreign nations clause and the interstate commerce clause. The former's expansive power is consistent with the Federal Government's absolute controls over foreign affairs. The latter is meant to act analogously to NAFTA.

The Angry Optimist|6.23.09 @ 5:43PM|#

MNG - I had no idea you were such a hypertextualist. I'll have to remember that.

Textualism is inappropriate where "plain meaning" clearly runs counter to the mischief and/or purpose at which the law was aimed.

Fluffy|6.23.09 @ 5:49PM|#

What I mean is that the deprivations involved in those cases get the Constitution's explicit blessing as long as there was certain basic processes.

True, but in the modern era those basic processes, as spelled out in the Constitution, aren't followed.

The Constitution provides for a jury trial in all criminal matters and all civil matters in excess of 20 bucks. Those provisions have been completely shunted aside by the modern regulatory state.

I still get where you're coming from - that libertarians would oppose many varieties of law depriving people of life, liberty and property, regardless of what criminal or civil due process was granted to the victim of that deprivation - and again, this is true.

The Angry Optimist|6.23.09 @ 5:49PM|#

The plain meaning of "to regulate" back in that day mind you, included power to prohibit.

Is that really, do you think, the sole definition of that word? Even the Latin root had different definitions. I highly doubt "regulate" meant one thing, to the exclusion of all the other commonly-accepted definitions.

|6.23.09 @ 5:53PM|#

MNG apparently believes that the Constitution gives the federal government the right to exercise absolute, unfettered control over every iota of economic life in the country.

Duly noted.

MNG|6.23.09 @ 6:03PM|#

Of course that was not the only meaning of the word, but that was a natural, normal, accepted part of the words meaning. If you are a court and you are asked to either approve or strike a government act of prohibition under the clause and you look up the definition of the word in a dictionary of the day and it says plainly that a power to prohibit is included in the meaning of the word, then wtf are you supposed to do? Refer to the legislative intent you say. But as Scalia has wisely pointed out there are usually many legislative intents, some stated, some not and this can be hardly discernible.

Besides, I'm betting that whatever evidence you are thinking of but can't produce that demonstrates the intent of the word was more like "facilitate" is probably, shall we say, less than explicit...In that case should such an intent trump the plain meaning of the text?

MNG|6.23.09 @ 6:05PM|#

RC
Jimminy Crickets you are not getting it! I'm not talking about the broad reading of "interstate commerce" I'm talking about the unqualified grant of power "to regulate" whatever interstate commerce is!

As TAO noted I approve of the rulings in Morrison and Lopez.

MNG|6.23.09 @ 6:07PM|#

"MNG - I had no idea you were such a hypertextualist."

Quite so. Something has to reign in judicial power. Those fuckers are unelected...Textualism, as set out by Scalia and Hugo Black before him, seem like good tools for that to me...

In Scalia's book A Matter of Interpretation I think he gives legislative intent a well warranted spanking. It's Breyer who defends that in his book Active Liberty (along with the "practical results" of legislation)

The Angry Optimist|6.23.09 @ 6:07PM|#

Even Scalia has eschewed textualism when he realizes that we're headed for "absurd result" territory. See: Green v. Bock Laundry.

The Angry Optimist|6.23.09 @ 6:12PM|#

not to start a 1L Statutory Interpretation class here, but you really think that if a statute says "No Vehicles In the Park", that the court should interpret that to mean RC cars? Baby strollers?

MNG|6.23.09 @ 6:26PM|#

Here's a benign example of what I'm getting at.

commission of Fisheries v. Hampton Roads Oysters Packers and Planters Ass'n, 109 Va. 565 was a case where Virginia had a law establishing certain areas in waters to be public oyster beds and preventing people who owned the land involved from doing certain things with it. An oyster company was told, after a re-survey by the state, that some of its grounds fell under that line and they were to be restricted in what they did. They objected and the court said tuff luck because they had notice and hearing before it happened. That would not happen in Libertopia.

MNG|6.23.09 @ 6:50PM|#

Interpreting what a vehicle is would be more like interpreting what interstate commerce than it would be like interpreting the limits of the word "to regulate."

On the other point, I doubt you'd be able to convince me that arguing that interpreting the power granted to Congress "to regulate" commerce as including a power to prohibit would be an "absurd result."

|6.23.09 @ 11:32PM|#

Am I interpreting MNG's posts correctly when I read them as basically arguing that the Founders fell ass backwards into giving the federal government authority to regulate all aspects of economic life (per the Wickard decision) because of poor/imprecise wording of the commerce clause?

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