Does the Constitution Protect the Unenumerated Right to Economic Liberty?

Last week the U.S. Supreme Court declined to hear a legal challenge to Florida’s occupational licensing requirement for interior designers. In response to the column I wrote criticizing the Court for this failure to protect economic liberty, I received several emails from readers who said they agreed with me that the Florida law was stupid, but failed to see why the Supreme Court should be allowed to interfere with it. The Constitution doesn’t list economic liberty among the rights it guarantees, they told me.

In fact, the Constitution does protect economic liberty—not to mention other unenumerated rights, as the Ninth Amendment clearly states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

In other words, we possess far more rights under the Constitution than the document itself could ever possibly list. (The political scientist Stephen Macedo once helpfully described this arrangement as one “wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”) But since the Florida case dealt with a legal challenge to a state regulation, the specific constitutional provision we should be concerned with is the 14th Amendment, which reads in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.

To understand the original meaning of the 14th Amendment you need to first understand its origins in the free labor philosophy of the anti-slavery movement, which centered on an individualistic and market-oriented form of self-ownership. The abolitionist leader and escaped former slave Frederick Douglass nicely illustrated that philosophy in the famous letter he wrote to his former master. “You are a man and so am I,” Douglass declared. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner."

The former Confederate states had other plans for Douglass’ faculties in the aftermath of the Civil War, however, and began enacting a series of laws and regulations that robbed the freedmen (and their white allies) of their civil, political, and economic liberties. Louisiana, for example, mandated that, “Every negro is required to be in the regular service of some white person, or former owner, who shall be held responsible for the conduct of said negro.” There’s a term for that arrangement, and it’s not self-ownership.

So the 14th Amendment was written and ratified to protect those rights and to enshrine the free labor philosophy into law. According to Rep. John Bingham (R-Ohio), the author of the section of the amendment I quoted above, the 14th Amendment secures the right “to work in an honest calling and contribute by your toil in some sort to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.”

Which brings us back to Florida’s occupational licensing scheme. Requiring interior designers to carry a costly and unnecessary state license infringes on their economic liberty while doing nothing to protect the health, welfare, or safety of the public. It’s precisely the sort of arbitrary interference with the right to earn a living that the 14th Amendment was designed to prevent.

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  • Bob R||

    It hasn't. It doesn't. It might. It should.

  • Comment Tater||

    The great and deadly flaw in the Constitution was its failure to guarantee a separation of economics and state in the same manner that church and state was addressed.

  • ||

    The single biggest flaw in the Constitution? No pictures.

  • ||

    Venn diagrams would have been very helpful.

  • ||

    Yes. Along with pie charts and a centerfold.

  • mr simple||

    Just one centerfold for the last 235 years? Would she be considered the ideal American woman?

  • ||

    Well, the centerfold could be amended, like the other clauses.

  • Barely Suppressed Rage||

    Nah, someone would just file suit to get the SCOTUS to reinterpret the centerfold, in light of "evolving standards" to meet the modern and changing needs of society.

  • ||

    I shudder to think what sort of centerfold the Supreme Court would foist upon us.

  • ||

    Wise Latina Reclining

  • ||

    [Sits in stunned silence.]

  • ||

    Oh, I hate you for that SugarFree.

    I pray for Alzheimers, so the image will be erased.

  • Barely Suppressed Rage||

    Hey, at least SF didn't provide a link. Always look for something to be grateful for.

  • mr simple||

    Now that would make C-Span worth watching.

    Sen. John: I move we choose a nice, buxom woman, full of mirth and gaiety.

    Sen Sarcasmic: I propose an amendment to the gentleman's motion: No fat chicks.

    Then there is much arguing and large charts and pictures, etc.

  • ||

    And there's the gay and women folk to consider, along with other centerfold interest groups.

  • Zeb||

    And lots of Daily Mail citations.

  • ||

    Would obamacare pay for those amendments?

  • The Den Mother||

    I was thinking more along the lines of a male centerfold.

  • .||

    Wise Latina Reclining

    Some of you guys would hit it. :-)

  • ||

    No pictures.

    they would've been so low res, what's the point?

  • ||

    No, they had people who could paint nice pictures back then. In full color!

  • sarcasmic||

    Calvin: Dad, how come old photographs are always black and white? Didn't they have color film back then?

    Dad: Sure they did. In fact, those old photographs are in color. It's just the world was black and white then.

    Calvin: Really?

    Dad: Yep. The world didn't turn color until sometime in the 1930s, and it was pretty grainy color for a while, too.

    Calvin: That's really weird.

    Dad: Well, truth is stranger than fiction.

    Calvin: But then why are old paintings in color?! If their world was black and white, wouldn't artists have painted it that way?

    Dad: Not necessarily. A lot of great artists were insane.

    Calvin: But... but how could they have painted in color anyway? Wouldn't their paints have been shades of gray back then?

    Dad: Of course, but they turned colors like everything else did in the '30s.

    Calvin: So why didn't old black and white photos turn color too?

    Dad: Because they were color pictures of black and white, remember?

    .
    .
    .

    Calvin: The world is a complicated place, Hobbes.

    Hobbes: Whenever it seem that way, I take a nap in a tree and wait for dinner.

  • ||

    Calvin's dad is my role model in all things.

  • Paul||

    Hobbes: Whenever it seem that way, I take a nap in a tree and wait for dinner

    And Hobbes is mine.

  • sarcasmic||

    They could always be amended.

  • ||

    i'm sorry the response we were looking for was:

    "Morbo: THAT IS NOT HOW LITHOGRAPHY WORKS, LINDA."

  • Comment Tater||

    My fault for expecting a serious conversation here.

  • Ezra Klein||

    Why would hundred-year-old pictures help?

  • .||

    The great and deadly flaw in the Constitution was its failure to guarantee a separation of economics and state in the same manner that church and state was addressed.

    Many of those who supported it probably thought that to be a feature rather than a flaw. Hamilton is one who comes to mind.

  • ||

    Yes.

  • ||

    Why no alt-text on the Valerie Jarrett pic?

  • ||

    pwn

  • ||

    Alt-text: "Valerie Jarrett is not amused by your economic shenanigans."

  • Pip||

    Nice.

  • sarcasmic||

    This is how the government creates jobs.

  • ||

    I'm surprised IJ was unable to prevail and get them to take up the case. Surely Justice Thomas is sympathetic to the privileges and immunities argument for more than just guns?

  • ||

    Cert requires 4 justices to vote for it.

  • Crilltog||

    He is. And stop calling him Shirley.

  • Zeb||

    I'd like to have a word with the people responsible for the wording of the 2nd and 14th amendments (and probably the 9th and 10th too). It seems that a little more clarity and specificity in both of those cases could have saved us a lot of trouble.

  • Gojira||

    Damn you, you posted a much more concise version of exactly what I just said, while I was typing it. Damn you to hell!

  • sarcasmic||

    I know. "shall not be infringed" is so vague. What does "infringe" mean, anyway. Who uses words like that?
    Or "shall not"? What the heck does that mean?

  • Rev. Blue Moon ||

    Deliberate stupidity is not an attractive look for anybody.

  • Tony||

    Sarc doesn't do it on purpose.

  • Yeah||

    Blessed are the morons, for they shall inherit the blog.

  • Zeb||

    You make my point for me. The 14th does not say "people's right to engage in economic activity shall not be infringed" or something along those lines. So it fails form day one to protect those rights, even though that was its intended purpose. The courts have pretty much ignored the economic liberty aspect of the 14th. Had it been worded more directly, it woudl be more difficult to ignore these rights.

  • The Arch Bastard||

    Oh, I don't know - they don't seem to have any trouble ignoring others. That little ol' thing about involuntary servitude vis-a-vis military conscription comes to mind. And of course, lately there was the Kelo decision to warm the cockles of all liberty loving hearts.

  • Zeb||

    Yes, but they don't ignore most of them completely. Not yet, at least. If it were there in plain language, it would take longer to figure out how to ignore it. Or if it had even been enforced int eh first place, people might realize that it is better for everyone in the long run.

  • Paul||

    Folks just didn't talk that way back then. When people all stood in a room together and thus spake, and everyone else nodded in agreement, it didn't need to me made any more clear than that.

    No, the framers didn't see automatic weapons, nor did they foresee modern liberals.

  • CrackertyAssCracker||

    Huh? I find 2,9 and 10 pretty damn clear.

    The 14th sucks ass though, clarity wise. And I'd really be OK with a pretty wide range of meanings, from a philosophy-of-government point of view, as long as that meaning could be well defined and finite. It's just turned into a very arbitrary grant of power to the Federal govmt though.

  • Zeb||

    Are you kidding? The second is terrible. Why not leave off the whole first clause with its confusing mention of militias? And the 9th and 10th are no help because it leaves everything up to the states to decide which rights are actually retained by the people.

  • Barely Suppressed Rage||

    Yup. The "right to arms" amendment as originally proposed actually was more explicit and thus clearer. Oh well.

  • CrackertyAssCracker||

    I guess I just don't find introductory clauses confusing. At all.

    "Blue being my favorite color, and giraffes being my favorite animal, the right to keep and bear arms shall not be infringed." Is just as understandable.

    If anything it means that forming armed citizens groups and drilling/practicing in the woods is also protected.

  • Jason||

    This works great right up to the point where we appoint a Chief Justice who says "well, blue isn't really my favorite color, and I prefer gazelles to giraffes, so that obviously implies no guns for you!"

  • Gojira||

    I've never been a fan of the 9th. Too vague. If it's going to list unspecified rights that we hold, then what is the mechanism for determining what those rights are, and when they've been violated? The legislature and the courts are the only things I can think of who could arbitrate such decisions, so it seems pointless to be angry at them when they do so, and reach a conclusion we don't like.

    It's not like being mad at the court for doing something blatently unconstitutional, like upholding some sort of law that makes it illegal to say the word "poop". Since the rights secured by the 9th are unspecified, the gov't has very broad jurisdiction to decide just what those rights are.

    I'd be eager to hear any counterarguments though. I'd like to have my mind changed on this subject.

  • ||

    Given the tendency of the government to seek loopholes in all individual rights, I don't see how a more precise 9th would help. The statists would just argue "compelling state interest" and "commerce clause!" and "general welfare" and "nobody in 1790 could foresee the invention of the ballpoint pen!" and all those other bullshit arguments they use.

    Besides, it was never intended that the Constitution should list rights, since it doesn't grant them. Rather, it lists the powers of the government; that was a short list on purpose. Not that it matters either; again, the statists just declare that the Commerce Clause trumps all (except abortion and gay marriage of course).

  • ||

    Thank God the Constitution lists rights. If it didn't, we would have long since lost those rights it lists.

  • ||

    As I've argued before, the Constitution is flawed in that it assumes that natural rights are obvious and universally supported. They wanted a document that wasn't too binding, but they left enough slack for dishonest actors to strangle people.

    Take the 2nd, for example. It never occurred to them that a set of people would come along who wanted to get rid of the means of self-defense and hunting, so they made the 2nd mention militias specifically. Because the real concern was the feds disarming the state militias to ready them for takeover. They couldn't conceive of the mass disarmament of personal weapons future petite tyrants would come up with.

    I won't get on them too much, though, because it is hard to see what unreasonableness becomes considered reasonable when enough dumb people believe it.

  • Gojira||

    This is close to my thinking on the subject. But I'm not as willing to let them off the hook as you are. These were supposedly brilliant men, and you're going to tell me that all of them were that naive about the evil and despotic tendencies that men exhibit when given power? They lived in a time when Divine Right was still considered a legit legal doctrine for crying out loud.

  • Sparky||

    Even brilliant men can't forsee every possible outcome. Also, other brilliant men can find a loophole in any written document.

  • Sparky||

    Plus, there are some people out there who will argue what a word means in a given context. One group of people will see "shall not" and assume that it really means "shall not" while another group of people can't make that distinction. As an example, see some of John and Rev Blue Moon's comments in the Morning Links.

  • Rev. Blue Moon ||

    What'd I do now?

  • A Serious Man||

    Well they deliberately made it so that only educated, propertied men could vote and actually influence the Federal government. So I figure they felt that they needn't convince the lower people who would be happy being left alone to tend to their farms or explore the frontier.

  • ||

    I wouldn't call it naive, so much as they believed (like way too many people do) that after being exposed to "the truth" (of God, of liberty, of whatever) it would replicate itself forever. It was pride in their beliefs more than anything.

    I seriously doubt anyone could draw up a founding document for a minimal nation state that wouldn't have loopholes if enough people wanted them to be there.

  • Sparky||

    Another downfall of brilliant men is their assumption that their writings will be obvious to less brilliant readers.

  • ||

    The system required that power be checked in any number of ways that it isn't today, and it also required that citizens retain a healthy distrust of government.

    It was a nice try and worked for a remarkably long time. We even have enough left from that period and of the document that we're not quite dead yet.

  • sarcasmic||

    it also required that citizens retain a healthy distrust of government

    That's nothing public education can't fix.

  • ||

    Yes, that's part of the problem.

  • ||

    They were plenty brilliant. They were brilliant enough to know that if the people really wanted to put themselves in bondage, no Constitution was going to stop them. The Constitution is at its heart a humble document that leaves the nature and structure of our country up to us.

  • Loki||

    Just goes to show that even back then "Top Men" were not all that.

  • M||

    These were supposedly brilliant men, and you're going to tell me that all of them were that naive about the evil and despotic tendencies that men exhibit when given power?

    They foresaw that general problem, and their solution was that future Americans could and would amend the Constitution as necessary in order to deal with any new specific problems. They never imagined themselves to be creating a fixed and final constitution which would address all the ills to which mankind is prone for the rest of time.

  • Apatheist||

    When was the last time we elected a short president?

  • ||

    Short people are not to be trusted.

  • Zeb||

    And they got no reason to live.

  • ||

    SugarFree|1.17.12 @ 2:29PM|#

    They couldn't conceive of the mass disarmament of personal weapons future petite tyrants would come up with.

    Nor even regular sized tyrants!

  • ||

    I think a case could be made that most tyrants have been short. So, clearly, we must breed for height to end human oppression. It's probably that simple.

  • ||

    How's that working out for the Nordic peoples?

  • ||

    Their most famous tyrant was only 5'8, which is short for the male of the Nordic races.

  • ||

    ok, so still a work in progress. fair enough.

  • ||

    That would have been average to taller than average for the time period.

  • short, fat bastard||

    .... and short, fat people are to be despised.

  • Napoleon Bonaparte||

    This is what I had to deal with all my life! Damn all you tall skinny bitches.

  • Loki||

    If only the microagressions blog had been around 200 years ago you may not have felt the need to try to conquer Europe. You could have just bitched about it online line like all the rest of the short stodgy little pussies.

  • sasob||

    Madison was short of stature, but a giant of intellect. He wrote most of the Constitution.

  • ||

    And look how that worked out! If a tall guy like Jefferson had written it, we'd all be free still.

  • ||

    SugarFree|1.17.12 @ 2:29PM|#

    They couldn't conceive of the mass disarmament of personal weapons future petite tyrants would come up with.

    Nor even regular sized tyrants!

  • Loki||

    "the Constitution is flawed in that it assumes that natural rights are obvious and universally supported"

    In their time that was probably a valid assumption. It wasn't until later that people started going full retard.

  • Paul||

    They wanted a document that wasn't too binding, but they left enough slack for dishonest actors to strangle people.

    Which was precisely the opposite intention. It was left open enough so dishonest actors couldn't say, "Well, it didn't say the transgendered...

  • Tonio||

    My sense is that the founders thought they were doing the right thing by only specifically ennumerating the things that federal government could do, and by stating that all other rights were reserved for the people.

    Apparently, some people didn't get it, and the bill of rights had to be added for those people who didn't understand that all other rights meant just that.

    Now we have a population that cares more about (the illusion of) security than rights.

    Plus, "that document is like a hundred years old..."

  • Pip||

    You lost me at "My sense is"

  • Zeb||

    The problem is also with the 9th and 10th amendments. They don't make it clear at all what rights the people retain and what the states can legislate about. The 14th should have cleared this up, but was written so vaguely that it has been mostly ignored.

  • ||

    No we have a population that cares more about American Idol and Tim Tebow than they care about rights and the role of government.

  • Rev. Blue Moon ||

    Can I say something else? I don't understand how it can be the case that the Bill of Rights, according to historical consensus, was not meant to be applied to the states. The First Amendment specifically limited Congress because of the existence of State Churches. But does it make sense to say that only the Federal Government was prohibited from conducting warrantless searches or disarming the populace? Was the Bill of Rights really only supposed to apply to D.C. and nowhere else?

    That makes no sense to me.

  • ||

    I think the state constitutions already embodied the protection of most of these liberties, and the fear wasn't that they'd go rogue but that the central government would.

  • sarcasmic||

    My state constitution says "The right of the people to keep and bear arms shall not be questioned", and if you try it you are guaranteed to be questioned (run for warrants, detained, searched, searched again, questioned some more, have your arms confiscated never to be seen by you again unless you can afford thousands of dollars in legal fees, and finally charged with something so you have to spend the night in jail only to have charges dropped the next day).

  • ||

    Yes, well, these aren't Enlightenment times, you know.

  • H man||

    You can't question the right to bear arms. The actual bearing of arms is another thing altogether.

  • Liberal||

    You can't question the right to bear arms.

    Exactly... you don't have one.

    The actual bearing of arms is another thing altogether.

    Exactly... you can't.

  • sarcasmic||

    I think it meant that the federal government could not pass laws forcing the states to do those things, but that the states could on their own.
    Same idea as the original wording related to the income tax, which prohibited the federal government from putting conditions on the return of tax dollars to the states.

  • ||

    ---"I don't understand how it can be the case that the Bill of Rights, according to historical consensus, was not meant to be applied to the states."---

    Most, if not all, states had bills of rights in their State documents. There was a great deal of discussion about including the Bill of Rights in the Federal Constitution. Many felt it unecessary due to state protections. Many felt that since all rights retained could not possibly be listed, it was a fools errand. The compromise was the 9th & 10th Amendment.

  • Rev. Blue Moon ||

    Still, though, the First Amendment makes it clear that the Framers knew how to limit just the Federal Government, so one thinks that they would have included a precatory clause to the other seven amendments just the same. How many times was the Federal Government doing routine law enforcement that the Fourth Amendment is in any way relevant? Was the Supreme Court issuing warrants I wasn't aware of?

  • Barely Suppressed Rage||

    Everyone understood that the BoR applied only to the new federal government that they were creating, not to the states. At the time of ratification, various states had laws in place that likely would have been in violation of the BoR if it had applied. But it didn't.

    Take a look at the Congressional Record when the 14th Amendment was introduced. It was introduced expressly to make the first 8 Amendments apply to the states - indicating the general understanding that they did not, at that point.

  • Rev. Blue Moon ||

    Like I said, I get that, but that really does not make a lot of sense. So the Founding Fathers thought the RKBA was so important that they...granted the states the total ability to ban them if they saw fit? These guys weren't stupid -- they had to think that this could happen.

  • Barely Suppressed Rage||

    I believe that there was no sense that states would do such a thing, being that the states were made up of "the people" - and the legislatures largerly were gentleman merchants and farmers - who all understood they had the right to arms. And in fact, several state Constitutions already contained express guarantees of the individual right to personal arms for defense and hunting. So I don't think there was a perceived need to limit the states, because there was no threat perceived of that right ever being infringed at the state level. Moreover, if the people of a state did, in fact, decide to enact legislation limiting the people's ability to own or carry arms, that was their right to do so - each state was in essence its own sovereign and could make such decisions for itself. The 2A was meant to make it clear the fed guv could not take away the people's arms. As to whether or how the states could regulate arms, well that was up to the people of each state to figure out for themselves. Which in part was what the 10th Amendment was about - they retained that power.

  • Barely Suppressed Rage||

    BTW, the founders did not "grant" the states any power at all. The sovereign power of the U.S. originates with "the people of the several states," who granted a specific measure of that power to the federal government they created via the Constitution. The 10th makes it clear that that is all they were doing - giving the new federal government the specific powers they set forth in the Constitution. They were keeping the remaining powers for themselves in their respective states.

    The Constitution grants the fed guv certain powers; it does not grant powers to the states - rather, it was the people of the states granting power to the fed guv and retaining whatever they did not give away.

  • ||

    "If it's going to list unspecified rights that we hold, then what is the mechanism for determining what those rights are, and when they've been violated?"

    That's the point. The powers of the government are numerated. If the government isn't explicitly authorized to do whatever it's doing, then it's presumed to be a violation. The Constitution only mentions certain specific rights which happen to intersect with certain powers entrusted to the government by the People. The 9th emphasizes this by making clear that this smattering of specific rights is absolutely not, in any way, to be considered a full, comprehensive list of rights reserved to the People.

    For example, the Constitution doesn't spell out that we all have a right to keep our fingers and toes. That doesn't mean Congress is free to pass a law requiring everyone to chop off their middle fingers, not even to prevent the terrible interpersonal turmoil caused by obscene hand gestures.

    It can no more lawfully assume such a power than my car can drive to the moon - it's utterly out of scope.

  • Clayton E. Cramer||

    If something was legal in every state in 1791, there's a good case that it was an unspecified right retained by the people. If something was illegal (under either common law or statute) in 1791 in many states, it is hard to argue that it is a retained right. Many liberties would be protected, but by no means all. Alcohol regulations were common in this period; obscene materials were prohibited; oral and anal sex was a felony (and in most states, a capital crime).

  • sarcasmic||

    "I believe the Constitution should be amended with a clause which states that neither the federal nor any state government shall make any activity that does not violate, through force or fraud, a persons right to life, liberty or property, a crime."
    --Neal Boortz

  • Apatheist||

    The court did read it that way for a good couple of decades at the turn of the century. Imagine the government we would have to day if that precedent had become more established.

  • ||

    IIRC, the petition was framed as a 1st amendment appeal, which is why most of us did not think it would fly.

  • Rev. Blue Moon ||

    What about "No State shall...pass any...Law impairing the Obligation of Contracts."? Seems pretty clear to me.

  • ||

    The Constitution is a checkpoint, a speedbump, and as a mere document, couldn't be anything more. Its useful when embedded in a society that actually values individual liberty, but no document, however well drafted, could be useful in a society that doesn't value individual liberty.

    The Constitution is drafted plenty well enough (sure, sure, it could be improved) to do what any document could. The problem isn't with the wording, the problem is that the culture has moved on from valuing liberty.

  • ||

    The fatal flaw is right here in the first three words: "We the People." We've changed and accept levels of tyranny our forebears would've, well, killed you for.

  • Tony||

    Depends on what color your skin is, I'd think.

  • Zeb||

    What depends on what color your skin is?

  • Tony||

    Whether things have grown more or less tyrannical since the 18th century.

  • Zeb||

    Ah, so you are saying that since black people used to be enslaved in the 18th c., things have gotten better for them than they have for white people in the intervening years? Relative to the condition of slavery, I suppose that might be true.

  • Tony||

    I think liberty has increased for almost all Americans since the 18th century, but especially if you're other than a white heterosexual male with money.

    The Bush torture regime, awful as it was, was only a link in an unbroken chain of abuses the American government has perpetrated on its own people and foreigners. I'm not entirely convinced national security can be handled without some abuse, but that's an academic question.

    The point is, yearning for a mythical golden age, as libertarians are wont to do, is dumb.

  • Barely Suppressed Rage||

    The Bush torture regime, awful as it was

    Good thing Our Dear Leader has put an end to those practices!

  • Climate Change Activist||

    The point is, yearning for a mythical golden age, as libertarians are wont to do, is dumb.

    Did you say mythical golden age?

  • Mr. FIFY||

    Shit, Tony... you yearn for a mythical golden age every time you post your egalitarian bullshit.

  • Tony||

    Actually I favor minor changes to tax and spending policy. You just use hyperbole when you describe them.

  • Mr. FIFY||

    Uh huh.

    You do realize, once it sinks in that those "minor" changes will be akin to trying to halt Niagara Falls with a bucket... your Team will hold their hands out for more tax increases.

  • Pip||

    How one see the world?

  • ||

    Dunno.

  • ||

    According to Tony, everything.

    Its funny. To these pomo progressives, absolutely nothing is more important than the color of your skin.

    The Court of the Sun King was less concerned with pedigree than they are.

  • The Arch Bastard||

    Court of the Sun King? RC, you know very well that reference is going to fly right over Tony's head. :-)

  • The Arch Bastard||

    But I guess it's alright since Wiki doesn't go dark until tomorrow.

  • Devil's Advocate||

    Actually, if the courts and the Federal Government would have had the balls to protect freedom of contract, then they would have had a powerful weapon against jim crow laws and the black codes. If people have the right to contract freely with one another, then the states would not have been allowed to legally mandate segregation. Keep in mind that segregation was a government-sponsored attempt to prevent people from engaging in voluntary transactions in the marketplace. If people weren't opting to voluntarily integrate to at least some degree, then there would have been no need for laws preventing such a thing, right?

  • Gojira||

    This is probably the uncomfortable truth. "The People" simply don't want to be free in the meaning that we broadly use it here. They want to be free from threats and free from want (through gov't hand-outs) and free from inconvenience. If a totalitarian state delivers on those points, then they're pretty much OK with it. Sad.

  • Sparky||

    I bet it would be pretty easy to get a large number of people to come right out and say they need to have someone with a strong hand keeping them in line. There is a pretty large subset of the human race that actually WANTS to be ruled.

  • Gojira||

    My friend's brother Zach is just such a person. He was over a few weeks ago watching a republican debate with us, and the group started this very discussion.

    He said point-blank that without a strong state and fear of the police and the harshness of prison, he would rape, steal, and kill to his heart's content. He said that people like him are why we have to have a strong state. He needs to be ruled. I really had no answer to that.

  • sarcasmic||

    At least Zach was honest about it.
    More often than not such people are liars.

  • ||

    Do you actually believe that Zach is raving psychopath held in check solely by fear of imminent retribution?

    Or is he just some tuff gai who wants other people to think he is?

  • Gojira||

    I don't think he's a psychopath. I think murder, rape, and pillage are the natural state of mankind. Not raving lunatic style, mind you, running around shooting everybody in sight.

    I mean the opportunistic kind. Trog is hunting in your favorite patch of forest, so time for Trog to get a rock to the head. Then take his mate for your own. That sort of thing is I think more of what he was getting at.

  • sarcasmic||

    It is easier to take than to produce.

  • Rev. Blue Moon ||

    It is easier to take than to produce.

    A lesson our anarchist friends forget every day.

  • Pip||

    A lesson our anarchist OWS friends never forget every day.

  • Zeb||

    "It is easier to take than to produce"

    That depends on who you are taking from, I woudl think.

  • Y-not||

    It is easier to take than to produce

    This is Tony's Progressive Scout Motto.

  • Sparky||

  • Pip||

    "Or is he just some tuff gai who wants other people to think he is?"

    Does he ever wake up in a roadside ditch?

  • ||

    That commercial is awesome. Just. Awesome.

  • Sparky||

    That is the basis for most organized religions after all, and those have been around as long as humans.

  • ||

    First of all, I believe he's full of shit. But, assuming he's not, after his first offense couldn't we just prosecute him and lock him up so he can be ruled 24 hours a day and kept away from the rest of us? That's how we deal with animals and don't sacrifice our freedoms.

  • sarcasmic||

    He'll make a good cop assuming he has a clean record.

  • The Arch Bastard||

    I really had no answer to that.

    I do. I'd have taken him at his word and ordered him out of my home.

  • kinnath||

    For the vast majority of the modern population, they would prefer to be the canary kept in the gilded cage than the sparrow subject to the vagaries of nature.

  • The Arch Bastard||

    Miners used to have a unique use for canaries kept in cages. :-)

  • The Ingenious Hidalgo||

    “You are a man and so am I,” Douglass declared. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner."

    But I thought economic liberty was designed to keep black people down?

  • Tony||

    One presumes that by "economic liberty" you mean your specific ahistorical laissez-faire bullshit?

  • Zeb||

    Yes, he means economic liberty. The freedom to engage in whatever voluntary transactions you want to.

  • veemee sashimi||

    Made this a while back when someone suggested it as an alternative to Che t-shirts.

    http://www.imagebam.com/image/740725170309666

  • sarcasmic||

    The problem with that is that such a system requires private property rights, and under such a system people can get rich.
    That's bad because it makes people feel bad about themselves.
    That's not fair.
    If the government protects private property rights, it can not also give you the right to the property of others.
    How can it? What's mine is mine and what's yours is mine just doesn't work because the other person can say no it's mine.
    The concept of private property must be destroyed so government can give you the right to the property of others.
    This way the rich people will be torn down to size, there will be no more inequality, and everyone will be happy.

  • ||

    And everyone will be destitute except the government.

  • ||

    MISSION ACCOMPLISHED.

  • ||

    where's the opportunity in that for control-freaks to push people around? nobody ever thinks of them and their right to voluntarily force others into involuntary action.

    racist freedom hater!

  • Tony||

    Everyone believes that.

    Some people pretend that there are no such things as external costs, or that it's more, rather than less, freedom when the threat of bankruptcy comes with every potential health problem.

    At any rate, I've read the constitution and can't find "capitalism" mentioned anywhere, let alone a specific cultish version of it.

  • TonySpoofsHimself||

    tehexternalities

    TEHEXTERNALITIES!!!!11

  • Sparky||

    Also not mentioned in the Constitution: health insurance.

    What do you suppose would happen if nobody had health insurance and doctors had to compete for business?

  • sarcasmic||

    Only the super-rich would have access to health care and everyone else would die, of course.

  • ||

    ...die, when the rich harvest our organs, of course.

    amendedTFY.

  • Tony||

    People who couldn't afford medical treatment would go without?

  • ||

    Or charities would care for them? Or without a mass of regulation requirements, insurers would offer catastrophic protection plans so no one would go bankrupt if costs exceeded X. Or a combination of both.

  • Tony||

    The stipulation was no insurance. You just can't claim you'd have universal coverage without some kind of government intervention. If charities were adequate, we'd never have had the problem that government programs were invented to address in the first place. Where were private charities before Medicare?

  • mr simple||

    Right, and doctors would just sit around being rich with no patients to look after.

  • Tony||

    Are you suggesting that there is any product or service anywhere in a free market that every single person can afford?

    And you think among those types of products is healthcare, whose costs are unpredictable and often stratospheric?

  • sarcasmic||

    “The first lesson of economics is scarcity: There is never enough of anything to satisfy all those who want it. The first lesson of politics is to disregard the first lesson of economics.”

    Thomas Sowell

    Tony is well versed in the first lesson of politics.

  • Gojira||

    Of course not. You're assuming that every single person has a right to some product. That's bullshit. There is no product on earth that anyone has a "right" to. You only have the right to attempt to obtain said product through peaceful means.

  • Tony||

    So people don't have a right to national defense or police protection? Are those not products that have to be paid for?

  • sarcasmic||

    Ah yes, Tony's "there's no difference between protecting the right to private property and protecting the right to plunder the property of others" argument.

    Add that to the Tony Stupidism® file next to "not-giving is taking", "not-taking is giving", and "laissez faire is force".

    What a maroon.

  • Tony||

    It takes taxation to pay for national defense and property protection. Taxation isn't theft for certain things and not-theft for others. There is simply no way out of this for you, as it is a bald-faced contradiction in your basic beliefs. Either taxation is theft or it isn't.

  • The Ingenious Hidalgo||

    You bring up this argument a lot, and for what it's worth I'm not sure that the answer you get to it is sufficient. However, what do you say to those of us (and we're not exactly a rare fucking breed) who say that taxation is theft even when it pays for the legitimate activities of property protection and defence?

  • Gojira||

    Yes, they are products that have to be paid for, but no, they do not have a right to them specifically. You could easily argue that they are necessary in order to secure rights to not be aggressed against, but that makes them a means to an end, not the end in and of itself.

    The constitution provides that the gov't defend the nation, but that's a particular function of the federal gov't, not a right, such as to speech, assembly, etc.

  • Tony||

    As long as we agree that there is not some magical cosmic dividing line that separates legitimate rights and entitlements and illegitimate ones. It really just just a matter of opinion. I think there should be a right to healthcare, not least because a universal risk pool makes healthcare cheaper, but also because every other advanced country on earth has made it a right, and we look foolish if we continue denying it.

  • sarcasmic||

    I think there should be a right to healthcare

    Which must be paid for by giving you the right to the property of others.
    How can government protect their right to private property and give you the right their private property at the same time?
    (hint: it can't)

  • Tony||

    Taxation isn't theft you ignoramus. If it's not legitimate to tax to pay for universal healthcare, it's certainly not legitimate to tax to pay for police to protect your pez dispenser collection.

  • ||

    If it's not legitimate to tax to pay for universal healthcare, it's certainly not legitimate to tax to pay for police to protect your pez dispenser collection.

    Explain this equivalency in as much detail as you can muster.

  • Joe R.||

    Taxation isn't theft you ignoramus.

    In that case, I'd like to keep mine.

  • Sparky||

    not least because a universal risk pool makes healthcare cheaper

    Except it doesn't make it cheaper for the person who never goes to the doctor's office. That person is now on the hook to pay for everyone else in the country (even if it is to a small degree).

  • Tony||

    Until he has a heart attack.

  • Sparky||

    Until he has a heart attack.

    At which point he could go to a hospital and use all the money he's saved to pay for it. And before you even think of saying the hospital is too expensive, go back to my statement about doctors having to compete for patients.

  • Tony||

    Or go bankrupt and leave everyone else with the bill. You are seriously claiming that in a free healthcare market, heart surgery would be affordable by literally everyone?

  • Sparky||

    but also because every other advanced country on earth has made it a right, and we look foolish if we continue denying it.

    It seems to me I've been hearing in the news lately about some money troubles a lot of these countries are having. Anyone else heard about that or is it my imagination?

  • Tony||

    Yet still the US has the most expensive healthcare in the developed world.

  • ||

    Anyone else heard about that or is it my imagination?

    That's just your anti-gay racism flaring up again.

  • T||

    not least because a universal risk pool makes healthcare cheaper

    There's no such thing as a risk pool for health care. Risk pools only apply to insurance. Stop conflating insurance with health care. It makes you sound like a bigger moron than uusual.

  • CrackertyAssCracker||

    You posts have a negative externality on my well being.

    -7.2 standard CrackertyAssCracker utilitons, to be precise.

  • Zeb||

    I'd rather be in bankruptcy than in debtors prison, or indentured to my creditors. If medical care is so fundamentally important, then isn't it worth going bankrupt to pay for it?

  • Tony||

    You would? You're insane then.

    I think it's arguably true that in the modern world healthcare is necessary to a "right to life" which our government is charged with protecting. There is no coherent reason why it should spend billions or trillions to protect us from foreign invasion--a phantom threat nowadays--but not healthcare. Both are threats to life. One is just much more common.

  • Barely Suppressed Rage||

    a "right to life" which our government is charged with protecting

    BZZZZT! Wrong. Where is it ordained that the government is "charged with protecting" our "right to life"?

    The Constitution says the government cannot DEPRIVE you of life, unless it first gives you due process. Period. There is a limit as to how and whether the government can take your life away. Beyond that, the government has zero obligation to make sure you're safe, or happy, or don't die. This the SCOTUS and other federal courts repeatedly have ruled. You are not paying police to protect you. The police are paid for the more amorphous job of fighting crim for the benefit of "society as a whole" and they have no duty to protect your individual life. Similarly, the military does not exist to protect your individal life.

  • Tony||

    Healthcare costs are socialized no matter what system you have. It only makes sense to have the largest risk pool possible. I don't particularly care what people born before modern healthcare even existed would think: the fact is socialized healthcare is universal in the developed world, and for good reason: it's cheaper than for-profit healthcare per capita and economically beneficial (people don't go bankrupt from medical costs and are therefore more free to participate in commerce).

  • Sparky||

    Bah, that's just based on your faulty reading of the Constitution. Any sane person wouldn't interpret it the way your deluded mind does.

    /sarc

  • Barely Suppressed Rage||

    I've read the constitution and can't find "capitalism" mentioned anywhere, let alone a specific cultish version of it.

    If you were at all familiar with they decided to replace the Articles of Confederation with the Constitution, you would know that it can be summed up with one word: commerce. It was largely about making it more orderly and therefore easier to engage in "intercourse" (i.e., business dealings, trade, commerce) among the states. To do that required a more orderly and predictable legal system.

    They did not do it out of some altriuistic desire to make sure everybody had a nice life and everything was "fair" all the time.

  • Tony||

    Eh, that's not the whole story. Also at issue were conflicts in and among the states (a particular motivation was Shay's Rebellion). Also fundamental was the need to collect money for the national government.

    The overriding point is that the national government was too weak and that weakness caused strife. A strong government made for more peace between the states (until some of them decided to rebel). That principle is universal: strong government creates peace within its jurisdiction. It's how Europe went from being the site of repeated episodes of bloody carnage to being totally war-free. Think of the wars institutions like the UN has prevented, however you might feel about its overall efficacy.

  • the genie's ass||

    Also at issue were conflicts in and among the states (a particular motivation was Shay's Rebellion).

    Shay's Rebellion occured after the Constitution was adopted - under Geroge Washington's presidency.

  • the genie's ass||

    George (damned keyboard)

  • Tony||

    Shay's Rebellion happened in 1786-1787. The Philadelphia Convention happened in May 1787--motivated largely by Shay's Rebellion.

  • Mr. FIFY||

    "Socialism" isn't mentioned either.

  • Tony||

    Implying that the economic system should be up to Congress. It's not like these things weren't litigated centuries ago. The Hamiltonian system won and coincided with America having the world's largest economy and highest standard of living.

  • Tony||

    We'll note that it would be odd for a document to contain words that hadn't been coined yet.

  • Mr. FIFY||

    *You* brought up that "capitalism isn't in the Constitution", so it's your own fault.

  • A Serious Man||

    Yes moron, they're called negative rights. Burke used this distinction to explain why the American Revolution produced a functional political system while the French Revolution devolved into violent chaos and then despotism.

    You're what Stalin would call a useful idiot for trusting that the state will always work for the good of all rather than just the accumulation of power.

  • Hey Now||

    Tony's not actually all that useful.

  • Tony||

    Negative rights, like the right to tax me to pay for police and courts to protect your claim to property?

  • sarcasmic||

    The government cannot protect his right to property and protect your right to his property at the same time.

    Well, I suppose it can in the contradiction that is Tony's mind, but that's about it.

  • Tony||

    The government is who determines what property belongs to whom. Taxation by definition is not stealing anyone's property, since it's done by the very same entity that determines what property is.

  • sarcasmic||

    The stupid in that makes my head hurt.
    I can't take anymore.

  • Mr. FIFY||

    Notice how he uses the term "negative rights", just like the way Barry uses it... in a negative fashion.

  • Zeb||

    Those aren't rights. That is the fundamental definition of government.

    And where the fuck does this "police only protect rich people" bullshit come from? Property rights are fundamentally necessary for the poor to make better lives for themselves. It is the poor who most need the protections of the police and courts. Rich people can afford to pay for their own security.

  • Tony||

    Hm, where I live the police won't even go into the poorer neighborhoods at night. Fact is the more property and wealth you have, the more you benefit from a government charged with securing your claim to it.

    The disparity comes in when you count what you think government ought to ignore. The libertarian government must protect the luxuries of the rich while ignoring the needs of the poor, and that is fundamentally morally incoherent.

  • Barely Suppressed Rage||

    Fact is the more property and wealth you have, the more you benefit from a government charged with securing your claim to it.

    The government is charged with making sure nobody takes my property? Really? Seems to me there is no government-appointed security guard standing in front of my house.

    I live in what the real estate agents refer to as a "desirable" neighborhood, with what I'll just say probably is an "above average" property and amount of stuff, and I almost never see a cop anywhere in my neighborhood. If someone did break in and steal my stuff, does that mean I can sue the government because it failed to protect my stuff? Or can I call the cops and hope they catch the criminal who did it? Then the state can prosecute him and put him away, while I make an insurance claim for the stuff he stole and then sold for drugs.

    Seems like a pretty shitty mechanism for the government to protect my stuff. Also seems like I'm not really "benefitting" all that much for all those taxes I'm paying for that system.

    I don't argue that the government must protect the "luxuries of the rich" anymore than it must protect the private property of the "poor." The "government" really doesn't do a whole lot to "protect" anyone's private property anyhow - the police rarely prevent or stop burglaries; rather, they investigate after they have occurred and try to catch the criminal and hopefully you can get some of your stuff back in one piece.

  • Tony||

    So you're saying the threat of force and punishment doesn't provide a deterrent to crime?

    Perhaps it's somewhat in the abstract, but your claim to your property is secured by men with guns paid for, in part, by me. Do you deny that the libertarian government must ignore a starving person but must intervene when a wealthy person's lawn jockey is damaged? If not, how do you justify that on moral grounds?

  • Wow...||

    ...the irony of a liberal talking about morality...

  • Joe R.||

    Governments do not have rights.

  • BC||

    I savor the irony of a historically-illiterate cuntpickle like you attempting to label anything "ahistorical bullshit".

  • ||

    In fact, the Constitution does protect economic liberty—not to mention other unenumerated rights, as the Ninth Amendment clearly states: “The enumeration in the Constitution of certain rights shall not be interpreted to deny or disparage others retained by the people.”

    But a prohibition on denying or disparaging unenumerated rights does NOT imply a duty to enforce them.

    The 9th amendment was intended to keep the BoR from being interpreted as a renunciation of the enumerated powers doctrine for the federal government, not as a Rorshach test for justices to invent new rights from whole cloth. Before the incorporation doctrine came in force this wasn't a big deal, but once governments with general police powers, rather than enumerated ones, start getting restricted by bullshit rights it becomes a problem.

  • Barely Suppressed Rage||

    The 9th Amendment expressly was added because the anti-Federalists did not want anyone coming along later and claiming that the only rights that were protected against government action were those listed in the first 8 amendments. They wanted it to be clear that just because we're listing the right to speech, religion, the press, arms, no soldiers in our houses, no unreasonable and unwarranted searches, due process, etc., that doesn't mean those are the only "rights" we have that the government can't infringe upon.

    The problem, which has been the subject of thousands of pages of law review articles, is trying to figure out what those "other" rights are or should be, although they are unenumerated - and what does it mean as far as limiting federal government power. And does the 9th have any teeth to it? Can it be used to challenge goverment action like the First or Second can?

    It's pretty clear that the government cannot do anything that would "violate" the First Amendment or Fifth Amendment, for example. But what would constitute a "violation" of the 9th?

  • sasob||

    But what would constitute a "violation" of the 9th?

    One might look to the British "constitution" and common law for that answer perhaps. I've read that much of what the American Revolution was about was that colonials were demanding their rights as Englishmen. Just a thought.

  • Joseph Lochner||

    Inorite? WTF?

  • Matt||

    I know Holmes' dissent in Lochner v. New York probably isn't very popular among the readers of this magazine, but I think it does have a pretty good quote about this: "... a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."

  • ||

    But freedom of contract is not an economic theory...

    There are economic theories that advocate freedom of contract, but it is not coterminous with any of them.

  • ||

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  • M||

    In fact, the Constitution does protect economic liberty—not to mention other unenumerated rights, as the Ninth Amendment clearly states: “The enumeration in the Constitution of certain rights shall not be interpreted to deny or disparage others retained by the people.”

    A classic libertarian mistake. You always hear "rights" and think "judges are the definers of rights". They are not.

  • M||

    To understand the original meaning of the 14th Amendment you need to first understand its origins in the free labor philosophy of the anti-slavery movement, which centered on an individualistic and market-oriented form of self-ownership.

    It's a strange day when libertarians have something nice to say, even if only by implication, about Abraham Lincoln.

  • M||

    In other words, we possess far more rights under the Constitution than the document itself could ever possibly list.

    We don't, really. Under the original constitution (the pre Civil War constitution) the constitution acted as a brake on the power of the federal government. Under this scheme of things the notion that some federal count might order a state to craft its occupational licensing requirement for interior designers would have been ludicrous. And an unconstitutional power grab by the federal government.

    since the Florida case dealt with a legal challenge to a state regulation, the specific constitutional provision we should be concerned with is the 14th Amendment

    Which was passed illegally in blatant defiance of the amendment process described in the US Constitution, which reads in part:

    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

    Every jot and tittle of that was ignored in the process of foisting the 14th amendment on the American people. Did two thirds of both Houses or two thirds of the several states call a Convention for proposing Amendments? They sure as hell did not. Were any states deprived of their equal suffrage in the Senate without their consent? Yes indeed.

  • myfriend||

    Nice article.

  • ||

    the constitution protects our rights in commerce, as well as everything else we do, save harming another, has anyone read the Constitution? A short read, gets to the point. Try it.

  • myfriend123||

    Nice post..

  • sam smith||

    Yes, I agree with you.

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  • han||

    nice article

  • fdrdg||

    The great and deadly flaw in the Constitution was its failure to guarantee a separation of economics and state in the same manner that church and state wascheap Beats by Dre addressed.

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