Antonin Scalia

Clarence Thomas' Confused Notion of Freedom

Like Scalia, Thomas sides with the ersatz "liberty" of the People (a collectivist notion) against the real liberty of the several persons.

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Compared to Supreme Court Justice Antonin Scalia, his colleague Clarence Thomas is well regarded by at least some devotees of liberty. This is not totally unjustified. Thomas has demonstrated a familiarity with the philosophy and history of natural law and natural rights, which he (at times) sees rooted in individual persons. For this reason, in some areas he has opposed expansion of government power; for example in U.S. v. Lopez, he broke long precedent and held that the commerce clause of the Constitution is not a blank check to the government.

However, this background knowledge has not kept him from taking positions abhorrent by libertarian standards. For example, he voted with the minority in Lawrence v. Texas, in which the court struck down a law criminalizing intimate acts between gay and lesbian individuals. To be fair, Thomas said his objection to the majority opinion was constitutional, not substantive: "I can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy." (On the right to privacy and the Constitution, see my 1993 article "Dissolving the Inkblot: Privacy as Property Right.") He called the particular law in question (quoting another case) "uncommonly silly," adding, "if I were a member of the Texas Legislature, I would vote to repeal it."

He also dissented in U.S. v. Windsor, which struck down the part of the Defense of Marriage Act that denied the surviving spouse of a state-recognized same-sex marriage exemption from the federal estate tax. Thomas has supported civil asset forfeiture, drug testing of student athletes in government schools, and broad presidential war-making powers. So he has not been opposed to government expansion across the board. Far from it.

Of course in Obergefell v. Hodges, Thomas voted against the proposition that state laws which deny recognition to same-sex marriages are unconstitutional because they violate the due-process/liberty and equal-protection clauses of the 14th Amendment. Even so, his dissenting opinion has material of interest to libertarians.

Thomas's main point is that Justice Anthony Kennedy's majority opinion did not demonstrate that denying recognition to same-sex marriage constitutes a violation of liberty. A denial of state benefits? Yes. But, he pointed out, to deny state benefits is not to deny liberty. Some quotes:

• Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.

• The majority claims these state laws deprive petitioners of "liberty," but the concept of "liberty" it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.

• "Liberty" most likely refers to "the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law."

• It is hard to see how the "liberty" protected by the Clause could be interpreted to include anything broader than freedom from physical restraint.

• The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government.

• Whether we define "liberty" as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.

• Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.

• But receiving governmental recognition and benefits has nothing to do with any understanding of "liberty" that the Framers would have recognized.

• As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits.

That's a lot of repetition in a fairly short opinion. I guess Thomas wanted to make sure we got the point. And it's a fair point. Liberty means freedom from aggression, not access to a government benefit, which itself must be produced by aggression against people as taxpayers, employers, etc.

But this doesn't mean that Thomas's opinion is sound overall, for it suffers from serious flaws. He seems oblivious of the fact that most states which refused to recognize same-sex marriage also refused to enforce private marriage contracts. That being the case, same-sex couples wishing to marry definitely had their liberty violated.

Moreover, Thomas says nothing about Kennedy's claim that denying recognition violates the principle of equal protection under the law. One can agree with Thomas that no liberty was violated but still object on classical-liberal and constitutional grounds to the denial of equal protection.

Finally, parts of Thomas's opinion show the same lack of understanding of liberty that Scalia showed in his dissenting opinion. Thomas writes:

• To protect that liberty from arbitrary interference, they [the people] establish a process by which that society can adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. [Emphasis added.]

• That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.

What Thomas is saying here is that liberty is not, as Benjamin Constant put it, "the enjoyment of security in private pleasures." Rather, it's the right merely to participate in the democratic process. If your position fails, fret not. Your civil liberty has been vindicated.

Like Scalia, Thomas sides with the ersatz "liberty" of the People (a collectivist notion) against the real liberty of the several persons. When you get down to basics, he's no friend of freedom.

This piece originally appeared on Richman's "Free Association" blog.

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  1. Read the title, and wondered WTF? Read the byline, then it made sense. Not reading past that, don’t need more drivel from Richman.

    1. I disagree. We need new comment threads on Sunday morning.

      1. He provides a service.

        Reason pays him to provide a Sunday thread and allows him to publish some slop along with it.

        (He happens to be right on this one, however.)

        1. He’s actually stepped up his game recently. Previously he’d give us some general polemic on libertarianism wrapped in a history lesson that was often of little interest to anyone except those unfamiliar with history or basic libertarian ideology. Now I see him doing pieces that actually critique current events and provide deeper insight into those from a libertarian/an-cap perspective. I thought this piece was good.

          1. “[O]ften of little interest to anyone except those unfamiliar with history or basic libertarian ideology.”
            I would classify myself as one of those. If there is a significant number of us, then Richman is doing something that is rather useful. He makes me think, and that’s good.

  2. Clarence Thomas rightly says there is no “right to privacy”. The completely invented “right to privacy” was created by leftist judges who admitted that it wasn’t in the constitution but in it’s “vapors and emanations”.

    Now what does the “right to privacy” do for the people? Disallow the government from spying on you? Silly you. Of course, not. But it does allow you to abort your baby. It does strike down sodomy laws. Even if you are for abortion and same sex “rights”, the supreme court legislating these “rights” has been disastrous for the countries.

    Richman is a libertarian fraud. He is a big government liberal.

    1. What the hell do you think the fourth amendment is, if not the right to privacy couched in 1780 terms?

      Just as the second amendment is the right to survival, to self-defense, with the redundant mention of arms specifically because the Framers knew that government would twist the obvious meaning.

      1. That’s positively Proggie in its torturing of the language.

        1. The right of the people to be secure in their persons, houses, papers, and effects

          isn’t privacy?

          pri?va?cy ?pr?v?s?
          noun
          noun privacy
          1. the state or condition of being free from being observed or disturbed by other people.

          I don’t see any torture at all.

          1. biconditionals are hard

            here is a ball. Perhaps you would care to bounce it.

      2. The word “privacy” is far too vague, covers too many disparate concepts. Therefore it’s very susceptible to equivocation; people conclude from the goodness/rightness of a statement of “privacy” meaning 1 thing to mean another. I forgot who wrote a good analysis exposing same in LP News (national) ~20 yrs. ago. 4th amendment’s a lot clearer.

      3. We (here amongst ourselves) are libertarians. There are aspects of natural law that we would like to see implemented in society. Great and good.

        We (as a nation) were supposed to be a constitutional republic with a constitution of fixed meaning and an amendment process. This is the general line of thought that Thomas represents on the SC. He articulates it well.

        YOU are a progressive at heart, wishing that the SC would make the constitution say whatever it is that you with it would say.

        1. I don’t care what others do so long as they do not impose anything on me. Although from a religious vantage point I see gay relations as sinful, first, I believe that God already put someone in charge of “judging the quick and the dead”, and as a libertarian, I am loath to impose my views forcibly on others.

          The clear desire of the gay movement however, is no longer to be free to behave the way they wish, but rather to have government endorse and subsidize that behavior. The argument is that since heterosexual relations are favored in law, protected by special enforcement and tax treatment, it is a violation of their rights if they too do not obtain the same favored status.

          This is nonsense unless you take the view that government cannot favor some behavior over others. Think this through, no tax credit for home ownership, no tax credit for hybrid cars, no laws to favor energy efficient heat pumps, and on and on. As libertarians, we might very well take this position, but are YOU? Is your position not that Gays are entitled to government benefits, but rather that heterosexual relationships should not get government benefits?

          No, that is not what I hear from you, or Sheldon either. Both of you wolves in sheep’s clothing, or should I say progressives in libertarian drag.

          1. This is nonsense unless you take the view that government cannot favor some behavior over others. Think this through, no tax credit for home ownership, no tax credit for hybrid cars, no laws to favor energy efficient heat pumps, and on and on. As libertarians, we might very well take this position, but are YOU? Is your position not that Gays are entitled to government benefits, but rather that heterosexual relationships should not get government benefits?

            ding, ding, ding

            Libertopia!

    2. The way I understand it, unenumerated rights are held to a lower standard when it comes to government infringement. The left has basically used this to infringe upon economic rights in particular, though it obviously flies in the face of rulings such as Roe v. Wade where the judges felt like they could not only define what constituted human life, but also that the right to privacy trumped all disagreement on the matter (note – I am not ‘pro-life’). I do believe that people have a right to privacy, and whether or not it is consistently enforced is beside the point. Has nothing to do with whether it exists or not.

      The equal protection argument made by Sheldan is more ad hoc reasoning to justify a result he likes. The lack of private marriage existing does not really change the fact that the benefits afforded to married couples are entitlements or positive rights at best.

      You do no have your liberty violated in the strictest sense by the government not granting you or your couple special privileges that it gives to others. And most of the contract rights in question here could have been duplicated regardless. What they can’t duplicate are the tax breaks and a few other legal exceptions carved into law.

      Based on the reasoning of Kennedy and his fellow leftist judges, there was nothing unconstitutional about this form of discrimination. It’s the exact form of social engineering they routinely justify.

      1. The way I understand it, unenumerated rights are held to a lower standard when it comes to government infringement.

        Nobody gives a damn about the Ninth Amendment. 🙁

        1. As a matter of fact they would rather it not ever be mentioned – peons might get the idea what real freedom and liberty is.

        2. Unfortunately the 9th is a piece of shit. How does anybody know what rights the people had before that? It says something that should’ve been understood anyway: that the US Constitution was not meant to abrogate the people’s rights. But it doesn’t supply any reference to those rights, so anybody can argue about any particular right as to whether it existed or not.

        3. Sorry that the Ninth Amendment can’t be a Koch/libertopian playground. I suppose it’s as good an excuse as any for the continued insignifcance of the libertarian movement. Everything would be okay if the Supreme Court would just read the constitution the way we want them to! There’s a reason the Ninth Amendment is ignored. Anything can be read into it. Better hope progressives don’t notice it, or you may get you wish for it to be resurrected.

    3. “Clarence Thomas rightly says there is no ‘right to privacy’.”

      and from the article:

      “To be fair, Thomas said his objection to the majority opinion was constitutional, not substantive: ‘I can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy.'”

      Now, I’m no constitutional scholar and speak aloud more than once a decade, but it seems to me that the right to privacy is found right there in the 9th amendment.

      The Constitution is not a laundry list of the rights of the American people. It’s a list of the “legitimate” powers of the federal government. That Clarence F. Thomas fails to acknowledge this indicates how radical a notion the concept a truly limited federal state is.

      1. The attendees of the 1788 convention really should have fixed the military and funding holes in the Articles of Confederation and just stopped there.

    4. Clarence Thomas rightly says there is no “right to privacy”.

      The Constitution is an enumeration of governmental powers, not an enumeration of rights. Since the Constitution does not enumerate a right to invade people’s privacy, therefore the people retain the right to privacy.

      Richman is a libertarian fraud. He is a big government liberal.

      That may be true. However, you’re a libertarian fraud, too. You’re a big government social conservative.

      As social conservatives have come under attack, they have retreated to the position that their individual liberties are being infringed. Well, get a taste of your own medicine, stop the bellyaching, then join the club. When you’re ready to work towards liberty for all, we can talk again. Until then, fuck off slaver.

      1. How do you know they had the right to privacy before? & what does “privacy” mean? “The right to be forgotten”, for example?

        1. How do you know they had the right to privacy before?

          Before what? The creation of the universe?

          Thomas is technically correct that there is “no right to privacy”. There is no such right because there doesn’t have to be. What is actually going on is that government simply doesn’t have the power to intrude into your privacy, except as such powers are explicitly granted by the Constitution.

          “The right to be forgotten”, for example?

          Apply the same analysis as above. What powers does the government have under the Constitution? Does it have the power to collect, retain, and distribute private data about you? Only in a very limited way. Does it have the power to stop private citizens or businesses to collect, retain, and distribute information about others? No, not in general.

          1. But then why does the 9th amendment, or the b.o.r. generally, exist? It implies that there are unmentioned powers granted by people to gov’t, & unmentioned rights retained by the people that may conflict w those powers, & good luck figuring out what those powers & rights are.

            1. There are no intentioned powers granted to the federal government. The ninth amendment says that, just because the BOR lists some rights, they doesn’t mean that we don’t have other rights.
              The tenth is a little different, but also recognizes that all our rights are not listed, and that any power not specifically granted to the federal government are ones that the federal government does not have, they are reserved for the states out to the people.
              Plain English.

              1. No unmentioned poets, stupid auto spell.

                1. Powers not poets. I give up.

            2. “It implies that there are unmentioned powers granted by people to gov’t,”

              BS. Where are these unmentioned powers?

              “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”

            3. The powers are enumerated and limited; if it’s not mentioned, it’s not a power that government has. The only wiggle room is that some powers explicitly granted to the government can be extended far beyond their original intent, like the interstate commerce power. It’s the job of SCOTUS to make sure that doesn’t happen (they have done a piss poor job at that). However, any discussion of the extent of those powers needs to start with acknowledging that we are talking about specific governmental powers and their limits, not rights.

              A right to free speech and a right to freedom of religion doesn’t make sense; absence of government authority to pass laws limiting speech, limiting exercise of religion, or establishing religion, on the other hand, is clear and specific.

      2. In my opinion, it’s the job of philosophers to figure out what is a necessary and sufficient set of individual rights, and it’s the job of judges, who I hope would be familiar with that work, to make sure that our laws protect our rights.

    5. Thomas is more the fraud. He couldn’t reason his way out of the paper bag he should put over his opinions on virtually everything.

      1. If you view Thomas as one who sees the constitution as one of fixed meaning, his logic is excellent. His view is that if you want it to say something different, amend it.

        1. He sees it as having fixed meanings that agree with what he likes. He sees the constitution as authorizing searches of cell phones. Clearly that’s in the constitution, right?

          When you get done licking Thomas’ boots (the ones he lends to the police) get back to reality and take a look at what you’re saying. Oh wait. You’re a libertarian, which means that will never happen.

  3. I would add, many libertarians, e.g., David Harsanyi, are realizing that they have aligned with proponents of the worst of the big brother thugs. Advocates of same sex marriage said they wanted legal protections. Were they satisfied when they were given civil unions? No.

    What they want is what has happened in Oregon. A Christian couple is fined $135,000 for not baking a cake. The lesbian couple described the decline for the cake baking as being “mentally raped”. Emails released show the state of Oregon colluding to bring forth this case. Now, the court has ordered the bakers not to talk about it.

    Libertarians have been played as useful idiots by big government advocates.

    1. Adam’s brother?

      A Christian couple is fined $135,000 for not baking a cake.

      Completely foreseeable consequences can not be unintended?

      1. Adam’s brother?

        Can you see the difference?

      2. Completely foreseeable consequences can not be unintended?

        Yep. They were completely foreseeable under Oregon public accommodation laws. I agree with you public accommodation laws are evil. We should get rid of them.

        Oh, were you attempting to to blame the settlement on SSM?

        Do you honestly believe Oregon including sexual orientation as a protected class was a RESULT of SSM? Your argument is fallacious and quite likely mendacious. SSM and public accommodation are CLEARLY two separate issues. Anyone conflating them has an agenda.

        1. Ah. So you can create a protected class, and then not protect them. Libertariot logic at its finest.

          1. What?

            My point is the baker would have been sued and fined regardless of whether gays can marry. Sexual orientation has been a protected class in Oregon since 2008. The argument that SSM will CAUSE gays to become a protected class is utter nonsense.

            1. The supreme court defined them as a protected class in their ruling. They weren’t a protected class nationwide until then. This ruling was needed to establish that, so that public accommodation laws would apply to them everywhere. There’s the connection. I know it might not make sense in libertopia, but I’m talking about the real world.

              1. I’m not a lawyer.

                But I’m fairly certain that the SCOTUS doesn’t have the authority to change the wording of the CRA. They can declare laws or portions of laws unconstitutional.

                You are not the first to claim this, however and I look forward to your explanation, as the last lawyer couldn’t or refused to explain it.

                Regardless, the Oregon public accommodation law was the basis for the suit and it has existed since 2008.

                1. The supreme court defined them as a protected class in their ruling.

                  Can you please cite that? I can’t find it.

                2. “But I’m fairly certain that the SCOTUS doesn’t have the authority to change the wording of the CRA. ”

                  Chief Justice Roberts disagrees

                  1. well, if that’s the case, there certainly IS a problem with the SCOTUS legislating from the bench.

                    AND, I’d like a cite to where he said that AND a cite to whatever case gives them that authority.

    2. No, statists have been statists. You seem to be implying that libertarians are useful idiots, co-opted by statists, which I suppose you might claim to be a back-handed compliment. But you are just spouting nonsense.

      1. “You seem to be implying that libertarians are useful idiots, co-opted by statists,…”

        I am not implying it. I am directly saying it. David Harsanyi (search “Was I Wrong To Support Gay Marriage?”) is saying, “Oops, I didn’t realize that the same sex marriage people would use this to trample freedom of religion and speech.”

        Spouting nonsense? The Oregon couple has been fined $135,000 for not baking a cake and then been ordered not to talk about it with the press. Catholic adoption agencies have been shut down.

        Same sex marriage advocates had been saying that those oppose SSM, who said that it would be used to trample liberty, were “spouting nonsense”. Well, the trampling of liberty is happening already. Those opposed to same sex “marriage” have been proved right. The liberal libertarians have been proven to be useful idiots.

        1. Well, the trampling of liberty is happening already. … The Oregon couple has been fined $135,000 for not baking a cake

          The trampling over liberties is happening because of anti-discrimination laws, not SSM.

          Catholic adoption agencies have been shut down.

          The Catholic church’s position has been on the side of statists as long as they could get their way, and they have used the state to ban gay adoption and even gay sex. Since they can’t get their way anymore, they are now trying to safeguard some power and privileges through pretending to favor some individual liberties.

          From a libertarian point of view, the state has no businesses favoring some forms of private associations or beliefs over others. In particular, that means that religions do not deserve special protection from the state compared to other beliefs or associations. If a coercive state violates the freedom of association of individuals or businesses in general (as ours does), that error is compounded if the state then carves out special exemptions for certain favored classes of beliefs or associations. And from a practical point of view, this becomes particularly dangerous when the beliefs and associations are politically powerful and anti-libertarian, as many churches have been traditionally.

          1. The trampling over liberties is happening because of anti-discrimination laws, not SSM.

            That’s like saying walking off of a cliff doesn’t kill you, gravity does. However, given that gravity is still operative the last time I checked, I suggest not walking off of cliffs if you don’t want to be subject to the consequences of it’s influence.

            1. Are you going to stand there in broad daylight and claim Oregon wouldn’t have included sexual orientation in their list of protected classes if the SCOTUS had gone the other way on SSM?

              That argument is beyond ridiculous.

              1. No, I’m pointing out a simple reality: blaming the welfare state, anti-discrimination laws, etc. for untoward consequences of policy changes is disingenuous. You already know that those things exist, you already know that they’ll have modifying influences on the implementation of a given policy, and you already know that they won’t be repealed. Pretending that your preferred policy change won’t be the catalyst for the ensuing baleful consequences of those influences acting in concert is naive at best, and downright dishonest at worst.

              1. Nobody, to my knowledge, has ever stated that bad laws didn’t exist in absence of legal gay marriage. Which detracts not in the least from the fact that gay marriage will compound them, and now at a federal level. Example.

                1. So, in your opinion, we should suspend equal protection under the law until we obtain the ultimate goal of getting government out of the entitlement business?

                  Sure. We’ll give benefits to the god fearing, Jesus luvin heteros…but the homos gotta wait for the 100% solution.

                  Or do you find “equal protection under the law” to be unlibertarian?

                  1. Well now you’ve done it, Frankie. I hope you’re prepared for the yokelanche.

                  2. I’m not a libertarian, so I don’t really care if it’s unlibertarian or not. But, as gay marriage, among other things, has so vividly illustrated, the concept of “equal protection under the law” is an absurdity that has no useful or practical meaning.

                    1. the concept of “equal protection under the law” is an absurdity that has no useful or practical meaning.

                      Fuck you. Go away.

                    2. Whoa! I see I’m debating one of libertarianism’s high-powered intellects here!

                    3. Whoa! I see I’m debating one of libertarianism’s high-powered intellects here!

                      Actually, you are. He simply sees your argument as so stupid it’s not worth his time.

                    4. Then why are you at a libertarian web-site?

                      To troll?

                      So, whatever you are, the question stands…

                      Are you against the constitutional concept of treating all citizens equally wrt the law?

                    5. For instance, you’d have no problem with a law that says Fd’A can commit fraud/theft/rape/murder and NB (or anyone else) can’t?

                    6. Why do you think these dumb motherfuckers come here, Francisco? Do they just need a new place to whine about how the homos are all of a sudden acting like they’re people?

                    7. I might have an objection to that particular law, but I have no objection to the concept. Laws are written with exception all the time. See Article 1, Section 6 of the constitution for an example.

                    8. What about it? That isn’t a law. It is a power granted government by the Constitution to prevent political opponents from having legislators arrested to prevent their votes on legislative issues. It doesn’t apply to the people, it applies to government.

                    9. He’s a sock, Francisco. No one is this stupid.

                    10. The constitution isn’t law? That will surprise a lot of lawyers, let alone everyone else!

                      But if you don’t like the constitution, look at the tax codes for the jurisdiction of your choice. There isn’t one that isn’t riddled with exemptions and exceptions. Legislative bodies routinely grant exemptions to certain businesses which they deem desirable to entice to their jurisdiction.

                    11. Exactly correct.

                      90% of what the government does is unconstitutional under the equal protection clause of 14A (although arguably only state law).

                      The fact that it’s been ignored for almost 150 years or that shitbag lawyers haven’t turned it inside out so it fits their political agenda doesn’t change the meaning of the written words.

                      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; nor deny to any person within its jurisdiction the equal protection of the laws.

                      It means what it says. The government doesn’t get to favor one group or individual over another when making law. The fact that that would be inconvenient to undo at this point isn’t reason to dismiss it.

                      If SSM shines a light on a 150 year old government abuse of power, more the better. Because government picking winners and losers is an affront to property rights.

                    12. The fact that it’s been ignored for almost 150 years or that shitbag lawyers haven’t turned it inside out so it fits their political agenda doesn’t change the meaning of the written words.

                      In other words, you’ve once again illustrated my point. 14A was ratified in 1868, so what you’re telling me is that it’s been ignored ever since it was written. And why might that be? Maybe because it’s unenforceable by definition? Or that an actual attempt to enforce it would lead to exactly the kind of legal absurdities we’ve become accustomed to? Or that it effectively nullifies the constitution as written by the founders? Which, I’ll point out, makes no mention of equal protection.

                    13. In other words, you’ve once again illustrated my point. 14A was ratified in 1868, so what you’re telling me is that it’s been ignored ever since it was written.

                      That’s EXACTLY what I claim. Maybe it’s because enforcing it eliminates 90% of government’s power? It accomplishes 90% of what libertarians (and supposedly Republicans) want. Limited government. If government isn’t allowed to discriminate it can only make laws that apply to everyone equally.

                      i.e.
                      People may not murder.
                      People may not steal.
                      People may not rape.
                      States may not employ tariffs.

                      Anything that can’t be framed in such a way, anything that gives advantage to one group over another is not the purview of government, and is therefore unconstitutional.

                      What parts does it nullify? What part of the original Constitution says the government has the power to to favor one group over another?

                    14. In what sense are you defining equality under the law? If you mean, for example, that everyone found guilty of ““burglary” (definition linked so there’s no confusion as to what constitutes a burglary) is subject to a 5 to 10 year jail sentence, I have no objection.

                      But when you get into the business of using the law to arbitrarily define things that are self-evidently different as “equal”, and then using it to force society at large to treat them that way, then you’ve illustrated my point: it’s an absurdity of no useful meaning. What prevents the law from declaring squirrels and rockets equal, and then insisting they comply with the same regulations?

                    15. What prevents the law from declaring squirrels and rockets equal, and then insisting they comply with the same regulations?

                      So them damn homos ain’t people? Is that it? NOT equal? Maybe they can be counted as 3/5 for the purposes of legislative apportionment?

                      Legislatures can make laws that provide entitlements to one group but not another? So you’d have no problem with a law that said redheads don’t have to testify against their spouses in a court of law, but brunettes do?

                    16. So them damn homos ain’t people? Is that it? NOT equal? Maybe they can be counted as 3/5 for the purposes of legislative apportionment?

                      A red herring. The law in question doesn’t deal with the treatment of the individual and his rights, it deals with a *relationship* between individuals, and there’s considerable precedent for not treating all relationships equal. The law recognizes a distinction between your relationship to your minor children and your relationship with your grocer. No, those relationships are not “equal”. The world will get along quite nicely if no one ever forms another gay relationship. Rather obviously, it will not get along so nicely if no one ever forms another hetero relationship.

                      Legislatures can make laws that provide entitlements to one group but not another? So you’d have no problem with a law that said redheads don’t have to testify against their spouses in a court of law, but brunettes do?

                      Again, I might object to the specific case, but as already illustrated, from the constitution on down the law provides special privileges to certain individuals under certain circumstances. The concept is perfectly legitimate.

                    17. A red herring.

                      No. Dismissing it as such changes nothing.

                      Again, I might object to the specific case

                      So, you have absolutely NO principles. No guiding philosophy. You agree with laws you like, and disagree with laws you don’t. And government should be free to impose whatever restrictions or benefits (or lack thereof) on anyone NB sees fit.

                      You’re as bad as Tony.

                    18. You libertariots arguing over the 14th Amendment remind me of theologians arguing over how many angels fit on the head of a pin. And it will accomplish just as much. I’ll be sure to pick up all the libertarianist books in the bargain bin of history, if they make it past the circular file.

                    19. What prevents the law from declaring squirrels and rockets equal

                      You mean like they were convinced by Rocket J. Squirrel?

                    20. “Equal protection” is not an absurdity, but it is too vague (like “privacy”). What kind of protection? Protection by law from what? See, if you specified those details, you could have something very good…or indifferent or possibly very bad.

                      I think it was supposed to mean the gov’t entity in question could not declare outlawry of someone, allowing anyone to take a free shot at hir. Unfortunately it’s come to be applied, or argued to be applied, to a panoply of privileges.

                    21. Well, if you are not a libertarian, on what grounds do you object to the $135000 fine? I mean, if you’re a conservative or progressive, you already piss on freedom of association, so there is no principled objection you could have to this particular limit on freedom of association.

                  3. If you must have laws, equal protection under them is fundamental to liberty. The trick is ensuring that some animals are not more equal than others. Some have interpreted the cake, flower and photographer incidents to indicate that this is not so and are upset about it.

                2. So was this part of the Lefts plan all along, to expand the welfare class, or was it an untended consequence that just happens to be favorable to the Left? I wonder.

                  1. Given that Christian conservatives are already part of the welfare class, it seems somewhat disingenuous of them to complain about its expansion.

              2. Also worth noting same sex marriage didn’t exist in Oregon when the cake was made and that they even had a Constitutional Amendment defining marriage as one man/one woman for years at the time of the fines.

                The fines are from events that happened in 2013 an have been bouncing through the appeals process since then.

            2. That’s like saying walking off of a cliff doesn’t kill you, gravity does…

              Actually, it is neither.

              It’s the sudden stop at the bottom that kills you. 😛

          2. “The trampling over liberties is happening because of anti-discrimination laws, not SSM.”

            It is all part and parcel of the same thing. The same big brother statists are pushing both. In Oregon, you had civil unions, protected status, then marriage. Other states will have the order switched. But the quashing of true liberties, speech and religion, is coming to all. The intolerant “tolerant” left don’t tolerate dissent.

        2. I thought they were administratively ordered to pay it, and no actual court was involved.

          1. Let’s see who shows up at their door with administrative guns and handcuffs if they refuse to pay.

            1. And blasts any dogs that may be in the vicinity.

    3. Advocates of same sex marriage said they wanted legal protections. Were they satisfied when they were given civil unions? No.

      For the simple reason that “civil unions” are not even close to being legally or financially equivalent.

      But your mask is slipping anyway with your “when they were given” formulation.

      What they want is what has happened in Oregon. A Christian couple is fined $135,000 for not baking a cake.

      That case falls under existing anti-discrimination laws, independent of gay marriage legislation.

      Furthermore, there is no reason why religion should exempt people from government coercion that applies to everybody else. It is no more wrong that the government should force a Catholic baker to bake cakes for a gay wedding, than that it should force a gay baker to bake cakes for a Catholic wedding. Maybe once Catholics are in the same boat with homosexuals, they will come around on the issue of government coercion.

      Right now, the arguments about religious liberty are hollow; they are rooted in the belief that religious liberty and belief is somehow special compared to all other liberties and beliefs, but it is not. Carving out exemptions from government coercion for religion isn’t more libertarian, it is more theocratic.

      (And stop calling these people “Christian couples”; many Christian churches have no problem with gay marriage.)

    4. “Libertarians have been played as useful idiots by big government advocates.”

      Nah. Libertarians always advocated for abolishing state licensure of marriage and social-engineering benefits. Since that’s about as likely to happen as Bill Clinton keeping his fly up for more than a fortnight, we talk about what the politically powerful do, which is usually uniformly bad (though not completely awful in the case of making benefits less arbitrary in their dispersal).

      1. Err, zipper.

        1. ? Why correct “fly”?

          1. The fly is just the cloth covering the zipper or buttons.

            Bill could easily produce his shrunken, elderly choad without dropping his fly.

      2. Maybe that will happen once progressives want it, since libertarians simply make noise but never actually accomplish anything until a relevant political class actually get around to doing it.

    5. You can’t help who aligns with you in some way or other. But you can avoid tailoring your own alignment to try to fit more closely to someone else’s. Virginia Postrel to the contrary, sometimes the menu items on the agenda don’t include anything close enough to your idea to make it worthwhile to choose among them. But she’s right in that you can’t look forever for a cause that exactly matches your own, so don’t be too afraid you’re picking the wrong side.

    6. Bravo. One libertarian gets it. You keep claiming victories, but it’s all stuff you guys have been promoting for years without any result. Now liberals look at the issue, get it done, and you guys piggyback while claiming victory the whole time. See marijuana for more of the same.

      Sorry libertariots. I understand that it probably isn’t fun to be irrelevant.

      1. I don’t mind being irrelevant as long as the trend bends more toward freedom. Take all the credit you like, as long as you keep striking down barriers to liberty.

        1. I’m glad you don’t mind it. Just as long as you realize it, you’re 10 steps ahead of most of your fellows.

  4. The statist trolls sure rose early this morning.

  5. I’m honestly tired of this argument, but it annoys me that Sheldon holds himself up as the prime example of libertarian purity when he puts forth arguments that are really utilitarian in nature.

    On another note…

    If we look just at the issue of marriage, this is the most libertarian solution we could have practically achieved, in my view. It is not a libertarian solution, ultimately, and I don’t think we are as close to getting real equality under the law as some others.

    If we look past marriage, it’s almost a guarantee that libertarians are about to lose a whole lot of fights as they relate to freedom of association and religion.

    I’m trying to keep those two views separate. But it seems like all of the libertarian social agenda tends to get co-opted by progs, and then twisted to suit the identity politics that keep them relevant. It can be a tough pill to swallow.

    1. No one has ever had a perfect score on the LP Purity Test.

      1. At least some of us score higher than 8%.

      2. And if we had a progressive purity test, intentions would be all that mattered. Results and process would have no consequence.

        Expecting intellectual honesty and consistency is tough. Especially when all libertarians are forced to operate in statist hellholes constructed by folks such as yourself.

        1. “intentions would be all that mattered”

          Don’t forget feelings. Liberal progressives have a right to not have their feelings hurt. In fact, your not mentioning feelings, hurts feelings. Thus, you must be silenced.

        2. What are you blathering about? Progressives get exactly what they ask for.
          Gay marriage? Check.
          Marijuana legalization? Check.
          Minimum Wage increases? Check.
          Affordable Healthcare? Check.

          Its libertariots who sometimes cling onto the progressive train like some kind of barnacle, claiming victories and patting themselves on their backs when in fact they’ve accomplished no more than they ever have.

          1. Affordable Healthcare? Check.

            Affordable? hahaowow.jpg

      3. Utilitarianism and those that push it can fuck off, in any event.

        1. Yes, your feelingz of moral superiority are much more important that trifling results.

      4. No one has ever had a perfect score on the LP Purity Test.

        So you’re saying an-caps like me don’t really exist? Last I checked, they were about 30% to 40% of the attendees at any given LP national convention.

    2. Exactly right. These progs are never satisfied.

      1. That is correct. Those bad, bad progressives just keep pushing for a better and more egalitarian society that’s not in the pocket of big money interests. Horrible! Why can’t they be satisfied with one of the most unequal societies in the world? Haven’t they gone far enough!

        1. Those bad, bad progressives just keep pushing for a better and more egalitarian society that’s not in the pocket of big money interests.

          Actually, progressives are the primary drivers of crony capitalism and supporting big money interests.

    3. But it seems like all of the libertarian social agenda tends to get co-opted by progs,

      Just like the religious freedom and pro-gun agenda gets co-opted by conservatives. Each of the nanny state ideologies has some areas where they agree with libertarianism, and some where they vehemently disagree.

      Believing that people are partly libertarian because they partly agree with some libertarian policies is stupid. And, by extension, believing that implementing some libertarian policies is better than none is equally stupid; freedom from government intrusion for some select groups often is little more than making that group privileged at the expense of everybody else. And that kind of piecemeal approach has killed libertarian-leaning parties in Europe, as they became viewed increasingly as special interest parties.

      The libertarian ideal is pretty straightforward to express. How to get there is a complex political, moral, and strategic question.

      1. “believing that implementing some libertarian policies is better than none is equally stupid”

        More like Fail Bear.

        1. “believing that implementing some libertarian policies is [always] better than none is equally stupid”

          More like Fail Bear

          Really? So you think that a nation in which, say, only Catholics are exempted from government coercion would be better than a world in which everybody is subject to the same government coercion?

          In fact, exempting members of a particular ideological movement from government coercion while tightening it on everybody else is the road to totalitarianism. And with Christianity, that risk isn’t theoretical, it is backed up by centuries of (dismal, totalitarian) history.

      2. “Believing that people are partly libertarian because they partly agree with some libertarian policies is stupid.”

        This. In the vegan community, there’re foods known as accidentally vegan, but vegans know better than to think that their producers are somehow backing the vegan philosophy. Same thing with libertarianism and gay marriage, which is why we are rightly concerned with the federalism issues raised by Obergefell even if we can hold our noses and support slightly less arbitrary dispersal of state benefits.

        1. Believing that people are partly libertarian because they partly agree with some libertarian policies is stupid.

          No, that’s reality. On any given issue, a person can hold statist views or individualist views. Most people have a hodgepodge of both, and their views over time change. If you consistently hold the individualist view, you’re an an-cap.

      3. Believing that people are partly libertarian because they partly agree with some libertarian policies is stupid.

        It’s not stupid at all. Nearly everybody is partly libertarian. There must be extremely few people who think that allowing any particular kind of liberty is the worst possible arrangement for society.* In fact, most persons think individual choice about a matter is a good thing, but may be counterbalanced against other values of the person who’s doing the thinking.

        * In fact, it’d be hard to imagine a kind of society that’d meet their preferences. Every choice must be made by someone other than the person affected? But then who gets to make that choice? Even if it were a single dictator, at least that person would have liberty to make those choices. If you got everyone in a circle & said all the choices about your life would be made by the person on your right, isn’t that itself a choice? So that choice would have to be made by the next person to the right, & so on, until it got back to you, but of course it couldn’t stop there.

        1. Let me guess: Just the good parts are libertarian? But anything you don’t like is progressive… except progressive issues that you like, like marijuana legalization, gay marriage, and reproductive rights. You know, the issues you claim victory for, even though nothing ever moved your way until progressives decided to make them happen.

          That’s basically libertarianism summed up.

  6. Give me tax benefits or give me death.

    1. In many states marriage is a tax penalty.

  7. Ole Jeb is stretching out his lead over Trump and the 14 also-rans in the latest CNN poll.

    The Bush name is synonymous with the GOP.

    Oh, and Good Morning Peanuts!

  8. I’m confused as to what exactly I’m looking at in that picture. Ps? There’s just something weird about how it looks.

  9. The story that Reason is blacking out

    http://abcnews.go.com/US/san-f…..d=32210463

    just got an interesting twist.

    The seven time felon illegal alien wasn’t trying to shoot the woman that he killed.
    He was shooting at sea lions.

    1. Reason is blacking it out, is it.

      1. Back to your books faggot.

    2. Anecdotal stories like that are moronic. If illegal immigrant saves a little child from a burning building, that’s no more of an argument for open borders/immigration than this is against it.

    3. If only San Francisco had some sensible gun control this never would have happened.

    4. He was shooting at sea lions.

      Well, I guess that makes it OK. /sarc

      1. It certainly doesn’t have anything to do with mens rea.

        /sarc

  10. A denial of state benefits? Yes. But, he pointed out, to deny state benefits is not to deny liberty.

    The “denial of liberty” is the forcible taking of money in the first place. The violation of equal protection under the law (and possibly the establishment clause) is that the money is then redistributed to a privileged group of people determined by the beliefs of some religious groups. So, we actually have multiple wrongs.

  11. ? Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.

    Mr. Thomas, please point out to me which clause of the U.S. Constitution covers our “entitlement to government benefits”. Did Jefferson write a clause endorsing Social Security? Did Madison write a clause ensuring us Medicaid/Medicare? Did Adams write a clause in support of SNAP?

    In my interpretation of the Constitution, and the actions that led to it’s creation, the main “freedom from government action” is the action of taxation; taxation that is primarily used to provide unconstitutional government benefits.

    1. You are agreeing with what Thomas said.

      Vs the present author who is saying that liberty is the government giving stuff away whether it be food stamps or an official imprimatur on you same sex “marriage” which allows you to collect benefits.

  12. Like Scalia, Thomas sides with the ersatz “liberty” of the People (a collectivist notion) against the real liberty of the several persons. When you get down to basics, he’s no friend of freedom.

    Freedom means freedom of the individual, the only kind there is. As for being a friend of it – damned few judges and other government members are.

  13. Here’s David Harsanyi’s article admitting that maybe he was played for a sucker when he joined the same-sex marriage movement. He cites chapter and verse to show mainstream progs calling for squashing out religious freedom and freedom of association.

    http://thefederalist.com/2015/…..-marriage/

    1. I do have to kind of agree with Harsanyi here a little bit. Statists gonna state!

    2. Take the aggressively confused Amanda Marcotte, who argues that “Rand Paul Would Rather End Marriage Than Share It With Gay People.” Marcotte is referring to Paul’s idea, one that’s common among libertarians?also, famously advocated for by Michael Kinsley?that marriage should no longer be a concern of the state. […] This solution is probably impractical when we consider the legal complexities of civil marriage. For pundits like Marcotte, though, taking the state out of marriage makes it indistinguishable from eliminating it.

      Of course, for statists the only solution is the state. Everything within the State, nothing outside the state. But I don’t understand Harsanyi’s sudden surprise as if he were new to this game. Of course these enemies of freedom couldn’t care less about individual rights. Of course their advocacy for gay marriage had nothing to do with respect for and enforcement of private contracts, but with the state wielding its enormous hand to sprinkle goodness over this sick world full of people with non-beautiful thoughts (beautiful thoughts being those little marxians harbor, of course.) They were never sincere about gay marriage as an issue of freedom, being just as comfortable with the idea that gay couples should be taxed to death and have their property expropriated by the state on a whim.

      1. David Harsanyi,

        Your defense of same-sex marriage is not their defense. The purpose for their advocacy was to forge a weapon against individuals they don’t like – PERIOD.

      2. If anything, I feel sorry for a lot of the homosexual couples who were rubed into this thinking – that the state/Progs were even on their side. Not too sorry, but bad enough because this just opened the Pandora’s Box for even greater regulation of homosexuality, inevitably.

        Lest we forget, Marxians are the ur-Puritans of any social movement. They don’t even have “religion of God” to back them up. Merely their own sense of self-righeousness and faith in the “community.”

        Now, like you said, this opens up gay couples to the same onerous marriage penalties as the rest. And probably more, as the puritans want nothing more than to regulate the private home/property. I would wager that the new sexual assault terminology will line up quite nicely with the new “normal” and now LGBT couples will be subject to the same laws as straight males, which is also probably their goal.

        Remember when the Progs vetoed OTV birth control just to try to get the 3000 dollar subsidies? Same playbook.

  14. While I do agree that there should be no government restrictions or regulations on marriage, and hence support the natural right of gay people to marry…

    …There’s always a political motive to what the proggies do, which is the growth of the state and increased control over people. That’s why I think the whole gay marriage thing as political movement is a means to an end. The fear is to attack the 1A by going after tax statuses for religious organizations, where it will branch out broadly. First by using “discrimination” as a means to attack tax exempt status, then to go after structures themselves.

    And as we see by the Oregon ruling, a handy way to attack speech as well. Expect thoughtcrime to be legislated soon, I suppose?

    But actual liberals have been had by the Proggies yet again. The Hand of the State only gives when it can take much much more from you.

  15. Not to worry, “proponents of heterosexual marriage have never been persecuted for their beliefs.”

    http://www.economist.com/blogs…..x-marriage

    1. This is what progs actually believe!

      1. And as to that “coming out of the closet in support of true marriage” video, it actually increased my morale.

        Given the backlash, I have often been scared to state my position on this subject. If I had a wife and children, I would, for their sake, probably withdraw from the conflict for fear of losing my job and having them go hungry.

      2. I think I sense a new memetic phrase, sir!

        “Poor people are poor because of affordable goods! This is what progs actually believe.”

        “More taxes means people have more money!”

        “Private property is theft!”

        “The tea you drink was stolen from someone else!”

        “People’s qualities are based on their skin color!”

        “All government workers are angels!”

        1. “All government workers employees are angels!”

          FIFY

          1. Haha, true that.

            “Free speech means you don’t have to pay for it!”

        2. The “actually believe” meme is from SouthPark – unless they borrowed it from somewhere else.

  16. Thomas: several sentences defining liberty and logically explaining why it wasn’t violated.

    Richman: a non-sequitor: “most states which refused to recognize same-sex marriage also refused to enforce private marriage contracts. That being the case, same-sex couples wishing to marry definitely had their liberty violated.”

    The equal protection argument has merit. Richman should have stuck with that.

  17. The whole idea of a “right to privacy” under American law is an Orwellian absurdity.

    Here are several things that do not violate the so-called “right of privacy” under American law:

    1) The submission of an annual report of all sources of income by type and source to Federal and State authorities which must be attested under penalties of perjury. Documents relevant to the preparation this report must be retained and made available for inspection by Federal and State authorities upon demand. (IRS, etc)
    2) The confiscation of money or other valuable property while traveling of any who would not provide a full and credible explanation of its source and the possessor’s intent for possessing such money. (Civil asset forfeiture)
    3) Random inspection of bodily fluids, hair, and breath. (drug tests, DWI checkpoints)
    4) Mandatory disclosure of foreign bank accounts and transactions. (FATCA, etc.)
    5) Unfettered access to medical records by law enforcement. (HIPPA, Patriot Act)
    6) NSA, of course.
    7) All of the nosy questions on the Census forms every ten years.

    The list, of course, goes on and on. The point is that government recognizes no right to privacy as the word “privacy” is used by normal English-speakers. But, hey, it does mean that a pregnant women can get an abortion (even though HIPPA and the Patriot Act makes information about this seemingly private matter between her and her doctor available to law enforcement.)

    1. No no no, you just don’t get it. The right to privacy means that you have the right to summarily deny ALL rights to another human, without having your moral turpitude pointed out to you to the detriment of your precious feelz.

      It’s almost like you expect words to mean something, or something.

      1. “The government has to search homes and persons to protect privacy.” This is what progs actually believe.

    2. DAMN! I forgot the following example:

      8) Federal investigations of anonymous commenters who would dare to make an obviously innocuous but flippant comment that expressed profound displeasure with the cruel and petty tyrants who administer the US “justice system” (another Orwellian absurdity.)

    3. The point is that government recognizes no right to privacy as the word “privacy” is used by normal English-speakers.

      It doesn’t actually recognize any other rights either, if they happen to get in the way of some “compelling interest of the State.” But enumerating some of them in the Bill of Rights makes the rubes feel good and serves – if no other purpose – to provide entertainment value in watching clowns like Justice Roberts and the rest make jackasses of themselves trying to prevaricate their way around them.

    4. The whole idea of a “right to privacy” under American law is an Orwellian absurdity.

      Under the US Constitution, the people have no enumerated rights because they don’t need it; government has enumerated powers.

      “The right to privacy” is just a shorthand for a couple of things: (1) constitutional limits on what the government may do, and (2) harm cause by one private party to another through disclosure of information.

      Income tax, civil asset forfeiture, checkpoints, census forms, etc. are considered (rightly or wrongly) constitutional, hence they don’t affect the “right to privacy”.

      So, in a formal sense, Thomas is correct: there is no “right to privacy”. For SCOTUS to postulate such a right isn’t a problem in the sense that it creates rights that didn’t exist before, it’s a problem because it creates the impression that the Constitution is a list of enumerated rights, instead of enumerated powers.

      1. US Sup. Ct. used “privacy” as shorthand for what they call in those contexts “fundamental liberty” to make babies, & whatever goes w that. Starting w Griswold, the reasoning was the Constitution was made by humans, humans wouldn’t exist w/o having been babies, so baby-making is more fundamental than anything in the Constitution. Since baby-making is fundamental to the Constitution (& to the states), references to “liberty” must include freedom to make babies. If there’s freedom to make babies, there must be a freedom not to. So birth control & abortions had to be allowed. Homo-fucking (& similar hetero activities) being similar to hetero-fucking, if 1 is allowed so must the other, as long as they’re done in private, else unequal protection.

        Since $ isn’t required to make babies, it doesn’t cover prostitution. Since people seeing you isn’t required to make babies, it doesn’t cover porn (though some kinds may be protected as free communication).

        It’s not “privacy” per se. Lawrence (& the case 20 yrs. earlier, decided the other way) concerned a cop who had a legal excuse to be there seeing something. If the cop had seen something else illegal, that wouldn’t’ve been covered. Some state constitutions use the word “privacy” in their bills of rights. In AK, that was taken to be a value that had to be balanced vs. others in case of pot possession at home. It was decided pot was essentially harmless, so there wasn’t enough excuse to overcome the constitutional protection of privacy.

        1. US Sup. Ct. used “privacy” as shorthand for […]

          Yes, that’s what I was saying: “right to privacy” in the US is merely a figure of speech; we don’t have enumerated rights, like Europeans do, we have a limited government with enumerated powers.

  18. Reason Magazine has been very offbase with this series of articles, often falling into the issues of reading comprehension we see elsewhere in media, the apparent cognitive dissonance leading its authors to read the opposite of what is written to maintain their perspectives.

    Take the following quote:
    “What Thomas is saying here is that liberty is not, as Benjamin Constant put it, ‘the enjoyment of security in private pleasures.’ Rather, it’s the right merely to participate in the democratic process.”

    Well no, Thomas said the opposite. He emphasized that liberty is a private pleasure, one not derived from the state or the democratic process. Further, the ability to participate in the democratic process is one private pleasure.

    Similarly, Reason says, “Like Scalia, Thomas sides with the ersatz “liberty” of the People (a collectivist notion) against the real liberty of the several persons.”

    And yet Thomas’s whole theme was to reject the collectivist notion. Reason gets this wrong.

  19. He seems oblivious of the fact that most states which refused to recognize same-sex marriage also refused to enforce private marriage contracts. That being the case, same-sex couples wishing to marry definitely had their liberty violated.

    This is the only reason why the decision was important. The states cannot simply eschew their duty to enforce private contracts which is one of the main purposes of government.

    What is left unanswered is how governments are to respect the property rights of citizens and businesses, an issue that is much more problematic than a simple disagreement on who can marry and who can’t. It would seem that as easily the several state governments could ignore their duty to enforce private contracts, they have much more readily trampled over people’s property rights for the most trivial of reasons or because of downright corruption.

    Yesterday, our favorite totalitarian asshole, Tony, made it clear that by defending individual liberty, we are also defending “segregation”, yet another example of his ridiculous Non Sequiturs. But let’s not fool ourselves thinking that Tony is a fluke of nature, not by a long shot.

  20. Clarence Thomas: To be fair, Thomas said his objection to the majority opinion (in Lawrence v. Texas) was constitutional, not substantive: “I can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy.”

    Apparently his version of the Constitution has some utter banality in place of the Ninth Amendment wording in my copy.

    1. Your problem is that the 9th is not specific as to what those rights are. While it may be true that the constitution doesn’t enumerate every right, that doesn’t mean that everything that isn’t enumerated is automatically a right, either. To the best of my knowledge, the constitution doesn’t specifically prohibit murder, but nobody seriously considers murder to be a right beyond the reach of the state to prohibit it.

      1. And Zing! goes the point, right over your head.

        Read the Ninth, then re-read your second sentence. Compare for the class. Show your work.

        … Hobbit

        1. Yes, it delegates those powers to the states, or to the People. The People! What were they, a bunch of collectivists?

          But the point is, it delegates broad powers to the states and to the People to decide what is and what isn’t a right. And leaving the states out of it, the federal government is likewise an agent of the People. Granting a power to the People without providing them with a mechanism for exercising it would be rather absurd, wouldn’t it?

      2. Your problem is that the 9th is not specific as to what those rights are. While it may be true that the constitution doesn’t enumerate every right, that doesn’t mean that everything that isn’t enumerated is automatically a right, either.

        It doesn’t make sense to talk about specific rights at all under the US system; rights are not enumerable.

        The question you always need to ask is: “has government been granted the power to do this”. Rights do not enter into it. You do not have “free speech rights”, government simply doesn’t have a right to limit your speech.

        Now, when government acts (rightly or wrongly), however, it has to obey some rules and restrictions. For example, it cannot arbitrarily deny protection or benefits to some groups and not others. That’s the constitutional basis of SSM.

        1. That’s why the 9th amendment (& the bill of rights generally) was dangerous: the implication that rights were enumerable, & that absent a finding of a right, the USA was granted the power to do stuff to youse.

        2. OK, how does the 9th Amendment to the Federal Constitution apply to the States?

          1. OK, how does the 9th Amendment to the Federal Constitution apply to the States?

            Let’s see…

            Per Article V: When ratified Amendments, “shall be valid to all Intents and Purposes, as Part of this Constitution.”

            So, the 9th is part of the Constitution.

            Per Article VI, second clause the Constitution (including the 9th) “is the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

      3. Your problem is that the 9th is not specific as to what those rights are.

        So ask yourself where the natural boundary for liberty lies. The answer is, actually, quite simple.

        The right to swing your fist ends where it come in contact with another person’s nose.

        You have an infinite number of negative rights. The only limitation on you is that you may not infringe upon another’s.

        1. Except that most would think that someone walking down the street swinging his fist at everyone’s face and barely missing is well within his rights.

          1. Your right to walk your nose into my swinging fists ends at my knuckles.

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  22. Sheldon Richman said: “When you get down to basics, he’s no friend of freedom.”

    Easy peasy: the entire US government, [no differently from any other government on the planet], is a fraud, a scam, from top to bottom.

    Ergo, the Supreme Court is a scam, as is Thomas. Unless, of course, you are dreaming 🙂 :

    Music: Dreams[ Anarchist Blues]: https://www.youtube.com/watch?…

    Video:”Statism: The Most Dangerous Religion”: https://www.youtube.com/watch?…

    Regards, onebornfree.

    1. onebornfree said : “Easy peasy: the entire US government, [no differently from any other government on the planet], is a fraud, a scam, from top to bottom.”

      Oops, my links don’t seem to work here [thanks Reason 🙂 ] . Let’s try these instead:

      Music: Dreams[ Anarchist Blues]: http://www.youtube.com/watch?v=w0o-C1_LZzk

      Video:”Statism: The Most Dangerous Religion”: http://www.youtube.com/watch?v=N6uVV2Dcqt0

      Regards, onebornfree.

  23. A lot of forced reasoning in this piece. The author apparently buys the theory that Supreme Court Justices should act as legislators and decide cases based on what the law SHOULD be, instead of what the Constitution gives them power to do.

  24. You ain’t got no rights, Thomas or no Thomas.

    The Constitution and Bill of Rights was/is a scam, so arguments about a supposed right to privacy via the 4th, 5th , or 9th amendments or whatever, although a pleasant enough fantasy, are a complete waste of time.

    The Bill of Rights was nothing more than a political bait and switch concocted by Madison et al to appease/head off the increased “noise” made by the Anti Federalists, in order to try preserve the shaky new , er, “voluntary” union.

    The Bill of Rights was completely nullified/neutered a full year and a half before it was ever even ratified by the individual states, via the Judiciary Act of 1789, paragraph 25 of which gave the Supreme Court the ultimate power to interpret the constitution and Bill of Rights.

    In other words, the states who then subsequently ratified the Bill of Rights almost 2 years after it was submitted to them by the new congress, got scammed, or “politically outmaneuvered”, if you prefer.

    See: “The Bill of Rights Scam – [aka The 1789 Judiciary Act Scam] ” :
    http://onebornfree-mythbusters…..-scam.html

    Admit it people, you/we all got suckered , and a long time ago , to boot.

    Regards, onebornfree.
    The Freedom Network: http://www.freedominunfreeworld.com

    1. onebornfree said : ” http://www.freedominunfreeworld.com

      That link is incorrect. The correct link is : http://www.freedominunfreeworld.blogspot.com

      Regards, onebornfree

  25. “I can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy.”

    Maybe he should check under the 9th Amendment. They usually keep it there.

  26. If Rich man thinks he could do a better job, why doesn’t he become a Supreme Court Justice?

    Well?

    WELL?

  27. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.

    Well, that’s one form of liberty. I like liberty from mosquito bites. Libertarianism should stop saying it’s for liberty and honestly describe itself as anti-government.

    Liberty means freedom from aggression, not access to a government benefit, which itself must be produced by aggression against people as taxpayers

    Richman’s somewhat more nuanced approach also extremely narrows the definition of liberty. Presumably this means he understands that government is not the only source of aggression in the universe, which is how libertarians justify using government aggression to stop those other forms. But “aggression” implies human agency, and there is no reason to declare human agency the only source of threats to people worth dealing with collectively. Once you figure this out, well then I am every bit as entitled to my taxpayer-funded healthcare as you are to your taxpayer-funded cops and courts.

    And there sure as hell isn’t “natural law” hiding out there somewhere explaining why it should be so. Thomas has produced a childlike explanation for a childish concept. How convenient “natural law” makes everything. Not only is it a part of nature and hence cannot be questioned, nobody can say what it consists of, so of course libertarians are right about it. As a concept it is absolutely indistinguishable “because I said so.”

    1. 1. People may do as the wish, provided the do not infringe upon the right of others in doing so.

      2. The only legitimate purpose of government is to protect the negative rights of the individual.

      Liberty is defined and maximised.

      1. Liberty doesn’t need you people to define it. You should use a more accurate word, because to the rest of us liberty means the ability to do things unimpeded. No “by government and government only.”

        I can’t do what I wish without many of the government services you would abolish. I can’t get a guaranteed education, roads to travel on, etc. Government does things that increase liberty (dictionary definition). You already admit that. If it can do that one thing, it can possibly do others. But they are not legitimate. Why? You don’t say. It’s just goes back to the obviously unworkable near-anarchy you claim to want, justifying itself circularly.

        1. because to the rest of us liberty means the ability to do things unimpeded.

          Yes, which is exactly like I said with the moral caveat of not infringing on someone else’s rights to obtain it.

          People may do as the wish, provided the do not infringe upon the right of others in doing so.

          The ONLY positive right you get is the protection of your negative rights, as that is required to maintain liberty for everyone. The second you go beyond that, you decrease liberty for someone. And the only reason you need any positive rights at all is because without a last word in force someone will surely take your liberty.

          It is the natural boundary. The place that makes sense when employing logic.

        2. because to the rest of us liberty means the ability to do things unimpeded

          Yes, progressives live under the delusion that if the only pass the right laws, they can increase liberty. But a delusion and an empty promise is all that is.

          I can’t do what I wish without many of the government services you would abolish. I can’t get a guaranteed education, roads to travel on, etc. Government does things that increase liberty (dictionary definition).

          No, sorry, it does not. You think it does because your accounting is faulty: you only see the visible benefits of government action, but not the massive, though spread-out, costs. Since you personally seem to be kind of a loser, of course, this may well be a net benefit for you personally, but on average, government action always decreases people’s liberties, even if it gives them “guaranteed eduction” or “roads to travel on”.

  28. Who is “Clarence Thomas”? There is no Supreme Court justice called “Clarence Thomas”. The true name of the man you are writing about is LONG DONG SILVER.

    1. Is that a pubic hair on your Coke can?

  29. What would the 4th of July be, without a clueless article from Sheldon attacking something fundamentally American?

    Today, it’s an attack on the fundamental principle of the Constitution, as embodied in the 10th Amendment, that the federal government was one of specific delegated powers, the balance of which were reserved to the States, except for those powers prohibited by the Constitution to the States, which were reserved to the people.

    The Federal Government was not made the All Powerful Decider of All Things, whether Liberties or Privileges.

    This is Thomas’s clear motivation and rational in the comments quoted.

  30. “Like Scalia, Thomas sides with the ersatz “liberty” of the People (a collectivist notion) against the real liberty of the several persons. When you get down to basics, he’s no friend of freedom.”

    While Sheldon sides with the “Liberty” decided by 5 Supremes and enforced through federal force on 300+milllion.

    That’s what his incoherent anarchism comes to – support for an All Powerful Federal Government, as long as it support his preferences.

    Sheldon may think that his support for an All Powerful Ruler, as long as He does right, puts him on the side of freedom, but history says otherwise. He is, heart and soul, a member of the Progressive Theocracy.

  31. except for those powers prohibited by the Constitution to the States

    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; nor deny to any person within its jurisdiction the equal protection of the laws.

    Or do you just ignore that part?

    1. Yes. Equal protection clause tends to be unpopular among bigots.

    2. Equal protection is fine up to the point you realize that chickens are only spherical in theory. A difference in sex makes for a difference in kind. Marriage law previously violated no rational concept of equal protection.

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  33. So, the articles criticizing the justices that are even less nominally associated with freedom will be along any day now, right Reason?

    I mean, Kagan has been pretty straight down the line in favor of seizing people’s property and taxing them whimsically but gets a pass because gay marriage.

    I guess as long as we scold Thomas and Scalia for ‘hiding’ behind stupid principles like ‘limited federal government’ and give Breyer, Sotomayer, Ginsburg, etc. a pass we’re supporting the libertarian cause, right?

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  35. Yeah. But as bad federal judges go, Thomas is still pretty good; and one should never let the perfect be the enemy of the good.

    Certainly, if the state and federal governments confined their attention to enforcing all marital contracts rather than subsidizing some marriages, but not others, things would be better.

    If equal protection is involved, how ever will the court rule when a single individual ask why his tax rate is different from the married tax rate?

  36. Who is “Clarence Thomas”? There is no SCOTUS justice called “Clarence Thomas”. The true name of the man you are writing about is LONG DONG SILVER.

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