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New page: Freespace has moved to http://sandefur.typepad.com. Please update accordingly.

Out of town: I will be out of town until Sunday afternoon, attending Freedom Fest. So scroll on down and see what posts you missed, and I will see you next week.

Notes on Twain: I’m getting near the end of A Tramp Abroad now. A few thoughts:

First, don’t miss Twain’s very funny attempt to ride a glacier in Chapter 39.

I soon...[learned that] “The Gorner Glacier travels at an average rate of a little less than an inch a day.” I have seldom felt so outraged…. When I revealed to Harris the fact that the passenger part of this glacier—the central part—the lightning-express part, so to speak—was not due in Zermatt till the summer of 2378…he burst out with…: “I am not a bit surprised. It’s a Catholic glacier. You can tell by the look of it. And the management.”

I said, no, I believed nothing but the extreme end of it was in a Catholic canton.

“Well, then, it’s a government glacier,” said Harris. “It’s all the same. Over here the government runs everything—so everything’s slow; slow, and ill-managed. But with us, everything’s done by private enterprise—and then there ain’t much lolling around, you can depend on it. I wish Tom Scott could get his hands on this torpid old slab once—you’d see it take a different gait from this.”

I said I was sure he would increase the speed, if there was trade enough to justify it.

“He’d make trade,” said Harris. “That’s the difference between governments and individuals. Governments don’t care, individuals do. Tom Scott would take all the trade; in two years Gorner stock would go to two hundred, and inside of two more you would see all the other glaciers under the hammer for taxes.”

Second, I was intrigued by the passage in Chapter 38, which I can only guess is a parody of Henry Adams: Twain meets with “the grandson of an American of considerable note in his day, and not wholly forgotten yet—a man who came so near being a great man that he was quite generally accounted one while he lived.” This “grandee” is “smirky,” and is possessed of “breezy self-complacency.” He tells Twain he’s from Boston, but “I don’t go home much. There’s no life there—little to feed a man’s higher nature. Boston’s very narrow, you know.” If it’s not Henry Adams, I don’t know who it would be—although Twain describes him as a very young man, when Adams would have been in his forties at the time Twain was writing.

Third, there’s a passage that I think foreshadows Huckleberry Finn. In Chapter 47, Twain says that he’d asked around about Italy, and “[t]he tourists were all agreed upon one thing—one must expect to be cheated at every turn by the Italians.” But for the rest of that chapter and the next, he notes the scrupulous honesty of the Italians he meets: “I retired to make a note to the effect that in Italy persons connected with the drama do not cheat.” Then, “I made a note—Italian omnibus conductors do not cheat....” Then “it is plain that in Italy, parties connected with the drama and the omnibus and the toy interests do not cheat.” All of this, Twain hints, shows that “The most permanent lessons in morals are those which come, not of booky teaching, but of experience.” Of course, this is exactly what Huckleberry Finn discovers during his trip. He’s been warned that blacks have no souls, that they are rightful property of white men—but through his experience, he learns the most permanent lesson in morals.

Churchill on war: This is from Winston Churchill’s speech The Defense of Freedom And Peace, delivered on October 16, 1938 (which, incidentally, was 38 years to the day before I was born). Its relevance to the current war seems obvious:

Can peace, good will and confidence be built upon submission to wrong-doing backed by force…? Since the dawn of the Christian era a certain way of life has slowly been shaping itself among the Western peoples, and certain standards of conduct and government have come to be esteemed. After many miseries and prolonged confusion, there arose into the broad light of day the conception of the right of the individual; his right to be consulted in the government of his country; his right to invoke the law even against the State itself. Independent Courts of Justice were created to affirm and enforce this hard-won custom….

We are confronted with another theme… [I]t leaps out upon us from the Dark Ages—racial persecution, religious intolerance, deprivation of free speech, the conception of the citizen as a mere soulless fraction of the state. To this has been added the cult of war. Children are to be taught in their earliest schooling the delights and profits of conquest and aggression. A whole mighty community has been drawn painfully, by severe privations, into a warlike frame. They are held in this condition, which they relish no more than we do, by a party organization, several millions strong, who derive all kinds of profits, good and bad, from the upkeep of the regime. Like the Communists, the Nazis tolerate no opinion by their own. Like the Communists, they feed on hatred. Like the Communists, they must seek, from time to time, and always at shorter intervals, a new target, a new prize, a new victim….

Dictatorship—the fetish worship of one man—is a passing phase. A state of society where men may not speak their minds, where children denounce their parents to the police, where a business man or small shopkeeper ruins his competitor by telling tales about his private opinions—such a state of society cannot long endure if brought into contact with the healthy outside world. The light of civilized progress with its tolerances and cooperation, with its dignities and joys, has often in the past been blotted out. But I hold the belief that we have now at last got far enough ahead of barbarism to control it, and to avert it, if only we realize what is afoot and make up our minds in time. We shall do it in the end. But how much harder our toil for every day’s delay!

reprinted in Blood Sweat And Tears 69-74 (1941).

Cool!: I hereby adopt this as the new official Freespace t-shirt.

Slavery: Steven Taylor is right about the Civil War. (Saw it on Signifying Nothing ) See also my article, Why Joseph Sobran is Wrong about The Civil War.

The violence inherent in the system?: Below, I quoted Owen Courreges’ complaint that “the Supreme Court...has at times stepped on the right of the people to decide certain issues for themselves. When the Constitution is interpreted to prohibit my state from banning abortion, the right of suffrage is made a little less meaningful. A stake in government means nothing if important decisions are gradually taken away.” I explained how this reflects Courreges’ view that he has a fundamental right to govern other people. It reminded me of a classic Freespace post from some months ago:

How [Owen Courreges] view the judiciary:

Joe: I would like to do X, which is something that doesn’t harm anyone else.

Richard: Yeah, but I don’t like you doing X. It just bothers me. Therefore I’m going to force you to stop.

Judge Bill: Um, Richard, I’m sorry, you don’t have the right to interfere with Joe if he wants to do X.

Richard: Aaargh! Unelected judges taking away my freedom! Help! Help! I’m being repressed!

Jefferson and sodomy: “Sandefur,” you say, “didn’t Jefferson punish sodomy with castration? Doesn’t this prove that he thought government could regulate private, adult, consensual sexual activity?”

Here’s the thing. In 1776, Jefferson sat on a committee to revise the criminal code of Virginia. He wrote an extremely scholarly bill to proportion crimes and punishments. Among the provisions was the following:

Whososever shall be guilty of rape, polygamy, or sodomy with man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a whole of one half inch in diameter at the least.

reprinted in Jefferson: Writings 355-56 (M. Peterson ed., 1984).

Jefferson then added the following in a footnote:

Buggery is twofold. 1. With mankind, 2. with beasts. Buggery is the genus, of which Sodomy and Bestaility, are the species.... [Edward Coke] says “it appears by the ancient authorities of the law that [sodomy] was felony.” Yet [a statute of Henry VIII] declares it felony, as if supposed not to be so.... Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civili, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was anciently punished with death, as it has been latterly.

Id.

While it’s true that Jefferson’s criminal code provided castration as the punishment for sodomy, therefore, the context reveals that Jefferson did believe that sexual acts which are not “injurious to society in any great degree” are not properly subjects of criminal law. That he thought sodomy was injurious suggests that by “sodomy” Jefferson may have been referring to non-consensual acts—in particular, to the rape of little boys. This is supported by referring to the case that Jefferson cites from Edward Coke’s Reports. (12 Co. Rep. 36 (1607)). There, Coke explains that

To make that Offence, [it is requisite to penetrate the “thing” and to emit and shed the seed of nature], for the Indictment is [against the ordinance of the Creator and the order of nature, he had venery and carnal knowledge of the said boy].... [A pederast, a lover of boys], whereof the Greek word is Παιδερασια, Buggary with boys....

reprinted in 1 Selected Writings of Sir Edward Coke 446-47 (S. Sheppard, ed., 2003) (Latin translated, emphasis added). As the Cato Institute’s amicus brief argued, laws against sodomy seem to have been used much more to prevent rape* than consensual sexual activity.

I’m not denying that Jefferson’s bill does appear to punish private, adult, consensual sexual activity. But I think it’s interesting to consider the context, and particularly Jefferson’s assertion that only acts which are “injurious to society in any great degree” may be punished by the criminal law. This, combined with the likelihood that the term “sodomy” referred to non-consensual sex (which certainly is injurious to society in a great degree!) show the weakness of relying on Jefferson’s bill as proof that the founders would have had no problem with sending armed agents of the state into peoples’ bedrooms to drag their loved ones from their arms.

But, again, even if the founding generation saw that as acceptable does not make it so.

*-It might be objected that this would render the term “rape” surplusage in Jefferson’s bill. But keep in mind that the term “rape” has changed its meaning over time. Jefferson himself implies that rape includes abduction, as in the “Rape of the Sabine Women,” an element which is not required for prosecution under rape modernly. See Jefferson, supra at 355 n.

What is Sandefur thinking?: Owen Courreges writes: “Tim Sandefur…believes the Constitution should enforce his entire philosophy of government (how awfully convenient!).”

It’s actually not all that surprising. I agree almost entirely with the political philosophy of the American founding. So it’s not surprising that I would think the Constitution ought to be enforced as it was written. But, of course, that’s not what Courreges means. He means that I think courts ought to enforce my “policy preferences.” This is simply a lie, and Courreges continues to repeat it. This is revealing of his intellectual integrity.

He says

this entire debate has now trended [sic] to the absurd with this single line from Sandefur: “[T]he political philosophy of the founding generation is logically incompatible with laws like the one struck down in Lawrence v. Texas.” This is nonsensical! We’re supposed to believe that Sandefur knows the philosophy of the founders far better than they knew it themselves? I say this because the founders endorsed laws banning sodomy—in the extreme.

He then cites two examples of how the framers enforced these sorts of laws.

First, I’ve already explained that historical practice is not always helpful when assessing political principles, because we know for a fact that the founding generation practiced many things that were incompatible with the political philosophy of the founding: the most prominent being the treatment of blacks or women in early America. Secondly, when Courreges refers to the enforcement of sodomy laws, keep in mind that most of these cases involved public acts, while the law in Lawrence did not. The Supreme Court in Lawrence specifically found that actual intrusive punishment of private, adult, consensual sexual activity was apparently much rarer than people like Courreges believe. But, again, the question is not about historical practice. The question is about the principles. If the founding generation was willing to abide hypocrisy in some areas—such as slavery, or established religions, or whatever—that does not prove that these practices are, in reality, consistent with the founding document. Courreges is simply refusing to speak in principles.

The Declaration says that all men are born free and equal, and that government exists solely to secure individual rights, including the rights to liberty and the pursuit of happiness. It says that states may not do things which states may not of right do. The Constitution says that people have a right to be secure in their persons, papers, and effects, and that they have “other rights” beyond those specifically enumerated. Jefferson explained that “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others.” These are incompatible with laws which allow the state to send armed agents into the privacy of our bedrooms and drag our loved ones from our arms on the pretext of creating a “moral” society.

Courreges goes on lying about my views. He says that I believe “despite all evidence, [that] the 9th Amendment applies to the states….” No. I believe the Ninth Amendment’s reference to “other rights” is vital to understanding the privileges or immunities clause, which applies to the states. He says that I think the Constitution “protects rights outlined in the Declaration of Independence, and that one of these rights is the right to bugger other men.” No, what I have said is that among the rights with which all men are endowed by nature is the right to engage in private, adult, consensual, sexual activity that harms no other person. That means I have the right to make love to my wife, and even to commit acts which poor Mr. Courreges finds offensive. And it means that Mr. Lawrence has the right to make love to another man even though poor Mr. Courreges might find it disgusting.

Let’s pause here to note how important it is that Courreges misrepresents this point. Unable to discuss this subject on the level of principles, Courreges must throw rhetorical mud-pies like “buggery” instead. I am reminded of Huxley’s famous rebuke to Wilberforce. It reminds me even more of what Justice Blackmun said in his great Bowers v. Hardwick dissent:

This case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare than Stanley v. Georgia was about a fundamental right to watch obscene movies, or Katz v. United States was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone....” We protect [the rights associated with the family] not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. “[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself and not others nor to society as a whole.’”

478 U.S. 186, 199, 204 (1986) (citations omitted). Because Courreges is unable or unwilling to think in principles, he sees these cases as only about the sexual act, rather than about the individual’s right to own himself.

And what did the founders think about “the moral fact that a person belongs to himself and not others”? Well, we can ask Thomas Jefferson. He says

If we are made in some degree for others, yet in a greater are we made for ourselves. It were contrary to feeling & indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This would be slavery & not that liberty which the [English] bill of rights has made inviolable and for the preservation of which our government has been charged. Nothing could so completely divest us of that liberty as the establishment of the opinion that the state has a perpetual right to the services of all its members. This to men of certain ways of thinking would annihilate the blessing of existence; to contradict the giver of life who gave it for happiness & not for wretchedness....

Letter from Thomas Jefferson to James Monroe (May 20, 1782) in Jefferson: Writings 779 (Merrill Peterson ed., 1984).

Courreges continues: “Sandefur seems to believe that the Constitution delegates power to the states. Again, this is absurd.” I don’t know where I said that. I did say the Fourteenth Amendment prohibits states from depriving people of their privileges or immunities, due process, or equal protection rights. I stand by that assertion. But when Courreges says that the Declaration of Independence is “no[t] legally binding,” he says what is not true. The Declaration is Constitutional law. I know this is controversial, but since it really lies at the heart of our controversy, Courreges needs to do more than simply beg the question. The Declaration is the fundamental act of union of these states, and it most certainly does recognize (not “establish”) “[some]thing akin to a restriction on the ability of government to regulate certain forms of sexual activity.” That is to say, the Declaration tells us that whenever government becomes “destructive of these ends”—including liberty—that it is the right of the people to alter or to abolish such government. It tells us that the rightful consent of the people is the source, and therefore the limit, of just government. (See the explanation by Jaffa, below.)

Courreges, who has, in this debate, consistently failed to provide textual or more than the most superficial historical evidence for his arguments, and who has avoided principles like the plague, then concludes that I have “come to [my] own conclusions” as to what “just government” is, and that “without a single shred textual or historical support,” I “wish[] to see these conclusions put into law via the Constitution.” Courreges should be made aware that simply repeating lies does not make them true, although they might mislead the unwary. I have quoted from sources as diverse as the Declaration of Independence, the Constitution, Thomas Jefferson, James Madison, St. George Tucker, Charles Sumner, Abraham Lincoln, Harry Jaffa, Harry Blackmun, &c., &c., &c. Courreges has quoted nothing. I have discussed how slavery and religious establishment are relevant to the discussion. Courreges has not discussed these subjects—except to assert his belief that segregation is constitutional. I have discussed principles. Courreges has discussed “buggery.”

But there is something worse than all of this. Owen Courreges believes that he has the right to send armed agents of the government—police officers who carry guns, batons, and sovereign immunity—into the bedrooms of men who are harming nobody, but who are making love in the privacy of their own homes. He believes that these officers may then seize these men, handcuff them, and drag them from each others’ arms, to the police car, and throw them in jail, exposing them to humiliation and violating the very epitome of privacy. He believes the state may then prosecute these men and subject them to jail and fines and public humiliation. It would be hard to conceive of a more revolting sort of government activity—and it would be hard to conceive of a clearer violation of “[t]he right of the people to be secure in their persons [and] houses.” It would be hard to imagine a clearer destruction of the right to liberty and the pursuit of happiness. This man, Owen Courreges, believes that he has the right to control your private, adult, consensual sexual activity with the person that you love. And he believes that this is consistent with the Constitution of the United States.

He says he has no respect for my principles. I ask the reader, do you have respect for his?

Calvin the blogger: (Watterson was ahead of his time.)

Fame!: Thanks to Dispatches from The Culture Wars for the link.

It really does come down to a dispute between those who say that they have the basic right to be free unless a good reason is given otherwise, and those who say that we have a basic right to govern others unless good reason is given otherwise: the difference between wolves and sheep.

Harry Jaffa has brilliantly demolished the claims of the wolves in several of his books (although he himself avoids the logical implications of his own theory when it comes to the rights of homosexuals). As Jaffa notes, Robert Bork claims that “[a] Madisonian system assumes that in wide areas of life a legislative majority is entitled to rule for no better reason than that it is a majority.” (quoted in Harry V. Jaffa, Original Intent And The Framers of The Constitution: A Disputed Question 278 (1994)). As Jaffa notes, this “is the very negation of Madisonianism. By it Bork shows that he is unaware of the logic of the relationship connecting majority rule with minority rights. For that logic we turn to Madison himself....” Id. at 285. Jaffa then quotes at length from Madison’s essay “Sovereignty,” which you can read here. He then concludes,

We see again that the right—and limits of the right—of the majority to rule must be understood first and foremost in the light of that ‘original compact’ by which political society is formed. The ground of that compact (or contract) is the equal natural right of every individual to become a member of the body politic by his own consent. This is but another expression of the thought embodied in the great proposition “that all men are created equal....” [T]he majority is the “plenary substitute”...only for those purposes to which unanimous consent has already been given.... [T]he very fact that the authority of the majority derives from those purposes—and only those purposes—to which all have unanimously consented, both specifies the purposes and limits the authority of the majority. The majority never rules—as Bork mistakenly supposes—merely because it is a majority.... [T]he reserved rights of individuals control the scope of the authority of the majority—and direct the majority to those objects which represent a common interest of all the citizens.... [N]ot even unanimous consent may authorize the exercise of powers over subjects which are understood by the original contract to remain among the reserved rights of individuals.... [T]he right to act upon unanimous consent, no less than the right of the majority is confirned to ends which are rational and moral.

Id. at 286.

Owen Courreges could profit immensely by an acquaintance with Harry Jaffa—not just because he needs a basic introduction to the founders’ political philosophy, but because Jaffa goes on to explain how that philosophy provides a far better basis for attacking “activist” courts:

The will of the people, in the exercise of their natural rights, is to be sovereign, but the judiciary, as the seventy-eight[th] Federalist declares, is itself supposed to exercise not will but judgment. In short, the theory of natural rights, while providing a strong argument for the protection by the courts of the reserved rights of individuals, nonetheless provides a much stronger (because principled) argument against proto-legislative judicial activism than that of any of the latter day “originalists.”

Id. at 286.

Ninth Amendment rights: Clayton Cramer says—and he’s quite correct—that the Ninth Amendment means the following: "[j]ust because the Bill of Rights didn’t explicitly list a right, doesn’t mean that it isn’t retained by the people. However: this doesn’t mean that everything that some clever lawyer decides to call a right ‘retained by the people’ is retained by Amendment IX." Then he says "I would argue that to call a right protected by Amendment IX, one must demonstrate that it was recognized as a right in 1789, when Congress passed it, or 1791, when the states ratified it."

That’s one way of solving the problem, surely. But it is not the only conceivable way. See, the Ninth Amendment does mean that we have other rights which government may not justly violate—but in answering the question "what rights are they?" we don’t necessarily have to refer to history. In fact, history, while extremely useful, can be misleading here. The fact is, history can only tell us about past practices, not whether those past practices actually were just, assuming justice means anything real. For instance, it could surely have been said that there was a right to slave property in southern states in 1791, when the Ninth Amendment was ratified. But it would be utterly absurd to say that the "other rights" referred to in the Amendment include the right to own another person. Why would it be absurd? Because there is no right to slavery—if the Ninth Amendment were to protect an owner’s right to a slave, then the slave himself is having his rights violated, which would mean the Ninth Amendment meant two opposite things at the same time.

Now, if you regard this as an absurdity, that’s because you hold an opinion as to philosophy—you think that a thing is what it is, and not its opposite. It is only philosophy, and specifically, political philosophy, which can answer the question of what the "other rights" of the Ninth Amendment are. When we approach political philosophy, we can have no better guide than the framers of the Declaration and the Constitution, but not because of their age—rather, because they happen to have been the greatest political thinkers of all time. The ideas of the framers is relevant for no other reason than that they were right. History can be valuable, but it cannot by itself tell us what the other rights were. It cannot tell us when historical practice was just hypocritical, as in the case of slavery, or where technology or other things have made the historical practice less relevant (as in, does the First Amendment apply to the Internet?) History is like an experiment—it only helps us to understand the principles involved, but it cannot substitute for those principles.

This is why it’s a little misleading to say that "[i]f some action was universally a criminal act in 1791, it’s a fair bet that Congress and the states who ratified the inkblot did not intend that action to be a ‘retained right.’" First, their intentions don’t matter—what matters is what they actually said and did. If a man writes "2 + 2," the answer is "4" even if the man himself mistakenly thought it was "5." Second, even if an act was criminal everywhere at the time of the Ninth Amendment’s ratification, that does not prove that these things are not rights. It has been illegal in various times and places for women to practice law, or for abolitionists to mail their newspapers to people, or for people to refuse to support churches they despise. Yet all of these laws violate the rights of people. So it’s true that if something was universally criminal, this is useful evidence that such laws don’t violate natural rights, because you’d expect someone to blow the whistle on such laws at a time when natural rights theory was understood far better than it is now. But it is certainly not conclusive. Again, as Sumner said, historical examples are a poor answer for great principles.

Right to earn a living: How about that? The Spring 2003 Chapman Law Review is finally on line, including my article, The Right to Earn a Living.

Stem-cells: Good for Nancy Reagan.

For a new Freespace: I’ve purchased some space on Typepad, and am in the midst of setting up a new version of Freespace. I, for one, really like this current layout, and I’ve never really had that many problems with Blogger, particularly of late. But others tell me this one is still hard to read, and there are a few new bells and whistles on Typepad. Anyway, the transfer may take some time. I’ll unveil the new version next week.

Courreges’ wrongheaded originalism: Owen Courreges responds that “the founders established a Republic, and as such, they vested the lion’s share of power in the hands of the people as represented by the legislature.” That’s true—but we must pause to emphasize two points.

First, they established a republic, not a democracy. The founders did not believe that the people simply have all political power, or that they have the right to rule simply because they are a majority. The founders believed, rather, that individuals have certain inalienable rights, and to secure these rights, they create government, and a republic is the most efficient method of creating a government which will secure individual rights. So it might be right to say that for the founders, majority rule was “ends based”: it was a means to the end of protecting freedom. And if majority rule undermined or violated individual freedom, then it was tyranny just as bad as tyranny by a single ruler.

This is the second point: the American founding (as St. George Tucker and others explained) changes the nature of “sovereignty.” Unlike Blackstone’s notion of sovereignty, the founders believed that government could have no legitimate authority over some things. In Madison’s words, “In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty.” (I have much more on this in a forthcoming article.)

Courreges continues: “The only un-democratic branch in [the Constitution] was judiciary, which was thus vested with no actual power.” This is something of an exaggeration. Surely it was given some power. Even those who think that judicial review should be abolished still think that the judiciary has some power. After all, the Constitution, Art. III sec. 1 says that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” (This would not be the first time that Courreges had advocated things directly contrary to the Constitution).

He continues: “for Sandefur and Barnett, the Constitution demands that libertarian[ism] itself be enforced. For them, a modified ‘harm principle’ can be imposed through SCOTUS, slapping down laws that they don’t like.” This is a lie. (I would use a less harsh word if Barnett and I had not so frequently explained why this is not true; yet Courreges continues to say it.)

First of all, liberty is not enforced. Government is enforced. People are naturally free. It is those who assert the claim who bear the onus of proof, and it is those who claim the right to govern who must defend that claim.

Second, yes, freedom does need to be protected by “enforcement.” That’s the whole point of government: to ensure that the majority doesn’t take away our freedom. The Constitution needs to be “enforced” against the majority—otherwise it would be meaningless, and pointless to write it down.

Third, neither Barnett nor I have ever advocated—nor do we now advocate—a system in which courts strike down laws that they “don’t like.” We have never, nor do we now, argue that courts should make “policy decisions.” What we have advocated, and now advocate, is courts striking down laws that deprive people of the privileges or immunities of citizenship, or laws which otherwise violate the Constitution. Courreges, by contrast, believes that courts have “no actual power” to protect individual liberty against the majority. This is, as I’ve said, revealing of the fact that Courreges believes the majority is always right.

Courreges denies that he believes this, but look at what he says: “I do believe in basic rights, although I believe that the Supreme Court has failed to protect these rights, and has at times stepped on the right of the people to decide certain issues for themselves. When the Constitution is interpreted to prohibit my state from banning abortion, the right of sufferage is made a little less meaningful. A stake in government means nothing ifimportant decisions are gradually taken away.” (emph. added). You see? He claims that he believes in “basic rights,” whatever those are—yet he speaks here only of his alleged “right” to govern other people! There’s nothing here about individual rights. He believes in the wolf’s view of liberty. As Lincoln explained,

The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable names—liberty and tyranny.

The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty.... Plainly the sheep and the wolf are not agreed upon a definition of the word liberty.

Courreges believes he has a natural right to govern other people, and he feels deprived when the courts say “No, you have no right to govern other people in thusandsuch.” He does not believe in “basic rights” except the “right” to rule others—and yet there is no such right.

The Declaration and its Constitution reflect the fact that the “right” to rule is only derivative of individual freedom. It speaks, for instance, of people being “deprived” of liberty without due process. Thus they must have liberty before government comes along, and that fact alone places limits on legitimate government. But for Courreges, there is a primary right to govern, and when someone interferes with that “right,” it deprives him of his “suffrage.” Well, James Madison had a great response to that in The Federalist that makes clear just how deep is Courreges’ war against the Constitution itself:

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?

It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.

That nasty old libertarian fanatic Madison—wanting to take away poor Owen Courreges’ right to control the lives of his neighbors.

Oh, and thanks to Trivial Pursuits for the link.

More on αγαπε: Responding to my post about the Greeks and romantic love, a Mr. Richard Feder, of Fort Lee, New Jersey, writes:

I think I disagree with your defense of Greek romantic love. I doubt seriously they had the same conception as we do (or, at least, as the highest idea we have of it, which I take to be most explicitly identified and explained by Ayn Rand). One good source on this is the first few chapters of [Nathaniel] Branden’s Psychology of Romantic Love, in which he gives a brief history of the concept of romantic love. In addition, I re-read the Nichomachean Ethics last weekend and although I think Aristotle had the single best explanation of the concept of love and friendship in history prior to [Rand], I really don’t see anything in there that explores the concept of romantic love the way we know it. Yes, the ideas are all there, but the idea that it is right for a man and a women to see each others as life partners, who are fulfilling across a range of one’s needs, is just not yet part of his conception in my opinion. I think the same is true of the Taliban. No doubt that some people in Afghanistan knew the idea of romantic love and experienced it. I have no doubt that there were many sublime romantic emotions experienced by many Afghanis. But I am not at all sure their culture could support a widespread phenomenon of romantic love as the ideal standard for marriage. Maybe what I disagree with is not the idea that there was no romantic love, but that I doubt there was an idea of marriage for love in the same respect as the best of us moderns have: the idea that a wife or husband are made should also be the people who are conceived by your as your romantic ideal. I am open to the idea that I could be wrong. I have heard Leonard Peikoff, for instance, say that if he could live at any other time he would choose to live in fourth or fifth century Greece. To me, this is absurd. But it may also indicate that I have a slanderous notion of what was truly available to them in their spiritual life.

One significant difference between today’s idea of ideal relationships and the ideas of Aristotle or others is our notion of equality. Aristotle’s explanation of the family in the Politics comes pretty close to saying that it’s right for men and women to see each other as partners fulfilling one another’s needs, but of course he doesn’t believe in the equality of the sexes, and that does make his view a little different.

Anyway, my point isn’t so much that a Greek writer could have produced the works of Shakespeare or something—my point was that when we say that the Greeks lacked our idea of romantic love, we seem to be saying that Greek men and women didn’t feel for each other the emotions that we describe as romantic love. And there’s just no reason in the world for us to believe that. We know the Greeks hated, we know they feared, we know they experienced disappointment and lust and hilarity—so it is absurd to suggest that they somehow didn’t feel love for their wives.

As to living in fourth century Greece—nobody who knows anything about what live was really like then would ever want to do that. But it might be fun to visit for a weekend, like the Renaissance Faire or something.

And did you say you read Nichomachean Ethics in a single weekend?

Principles: Owen Courreges says that segregation is, in principle, consistent with the Fourteenth Amendment. The Brown case was just about the incapacities of practice: if the separate schools for black students had, in fact, been equally well equipped and stocked, then there would be nothing unconstitutional about blacks being separated from whites.

He’s correct in one sense: the Brown Court never did explicitly embrace Justice Harlan’s dissent in Plessy, in which he said that

There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

The fact that Brown did not adopt this rationale is just what is wrong with Brown. See further Edward J. Erler, Sowing The Wind: Judicial Oligarchy And The Legacy of Brown v. Board of Education, 8 Harv. J. L. & Pub. Pol’y 399 (1985). And he’s right in another sense: it is not clear that the framers of the Fourteenth Amendment expected it to immediately abolish segregation in public schools.

Nevertheless, he is wrong in the most important sense. That is to say that, no matter how long and how thoroughly Americans tolerated their inconsistencies, they could not and cannot escape the fact that separate but equal is not compatible as a matter of principle, with the rule that all men are created equal, and that no state may deny to any person within its jurisdiction the equal protection of the laws. This is the really important thing. There are principles which some people grasp one end of, and others grasp another end, and some people see the sides or the corners, but it is rare if not impossible, to grasp an entire principle, and see where its light shines on the farthest wall of the future. We can only point the light of a principle, and then let our descendants grope their way in the darkness of our ignorance, following that beam until they find where it lands. Some of those who fought for our freedom in 1776, insisting that all men are created equal, actually did believe that black men were created by God to serve the whims of white men. Some sincerely believed it. Some believed it quite passionately. That does not change the fact that these two propositions are destined to collide.

Courreges makes a common error, of mistaking our groping along the path of a principle, for the notion of a “living constitution.” The notion of a “living constitution” is the notion that its principles can be changed to meet the demands of the time; that notion is inherently incompatible with a written constitution. But all written propositions—and especially sweeping propositions such as “all men are created equal,” or “the just powers of government are based on the consent of the governed,” or “people have inalienable rights antecedent to government”—have implications which the authors themselves may not recognize. Or they may recognize them, and for purposes of political expediency, they may not publicize them. Or they may recognize them and proclaim them proudly, and be roundly shouted down by those who are more ignorant or less principled. One example of the last is Charles Sumner, the great abolitionist Senator, who argued a century before Brown that segregated schools in Boston were unconstitutional because all men are created equal. He was right about that. But he was essentially shouted down by racists.

Living constitutionalism says that we have outgrown the Constitution’s principles. That is wrong. But what I am arguing is that we discover the logical implications of those principles, not just in cases where technology has led to new discoveries, but also in cases where our historical practice turns out to be incompatible with our principles: slavery, for instance, or the subjugation of women. As Sumner put it,

an old and barbarous case is a poor answer to a principle, which is brought into activity by the demands of an advancing Civilization, and which once recognized can never be denied.... [J]urisprudence is not a dark lantern, shining in a narrow circle, and never changing, but a gladsome light, which, slowly emerging from original darkness, grows and spreads with human improvement, until at last it becomes as broad and general as the light of Day.

Cramer on natural rights: Clayton Cramer writes “Everyone agreed at the time [of the writing of the Declaration] that the states had the authority to execute or imprison people—to take away their ‘Life’ or ‘Liberty’—not to mention taking away their ‘Pursuit of Happiness.’” This is not as accurate as it could have been. Under the Lockean theory of the Declaration, it’s not so much that some people are given the right to deprive criminals of these rights—it’s that the criminal gives up his rights to these things by violating the law of reason. As Locke explains,

That he who hath suffered the damage has a right to demand in his own name, and he alone can remit. The damnified person has this power of appropriating to himself the goods or service of the offender by right of self-preservation, as every man has a power to punish the crime to prevent its being committed again, by the right he has of preserving all mankind, and doing all reasonable things he can in order to that end. And thus it is that every man in the state of Nature has a power to kill a murderer, both to deter others from doing the like injury (which no reparation can compensate) by the example of the punishment that attends it from everybody, and also to secure men from the attempts of a criminal who, having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts with whom men can have no society nor security.

In other words, life, liberty, and the pursuit of happiness cannot be taken away from an innocent person. Once a person chooses to engage in unjust violence and slaughter and thereby declare war against mankind, he may be treated like a wild animal, and put in a cage or executed.

Thus the notion that the 1776 generation believed one could imprison or execute criminals does not warrant the conclusion that the Declaration is consistent with government policing private, adult, consensual sexual activity. The defendants in the Lawrence case, who were engaged in private consensual sex in their own homes, were not engaged in any war upon others, any violence, any slaughter, or the violation of anyone else’s rights.

Cramer continues: “What does ‘Liberty’ mean?...Is it unlimited...? [T]he states believed [sic] that they were free to engage in all sorts of economic regulation in defense of...what legislators pretended was the common good.... Many of the colonial and state laws were intended to protect public morality.” This is certainly true. Of course, it proves only that many of the people of the time were either willing to ignore, or were unable to understand, the inconsistencies that might have existed between the Declaration’s principles and their own practice. We know that people did overlook inconsistencies, because we know that slavery was inconsistent, and yet it continued despite the Declaration; we know the treatment of women in many ways violated the Declaration’s principles, yet it continued. What about morals legislation?

Morals laws which prohibit a person’s freedom to do things which harm no third person, are incompatible with the Declaration’s principles, even though many generations of Americans have been willing to live with that inconsistency. The Declaration says that government exists solely to secure our rights, and that states may only do those things which states may, of right, do. But states may not, of right, interfere in the private lives of others when those private lives affect no third person. There is no universal sovereignty in America as there was in Blackstone’s England—as St. George Tucker explained at length in his edition of Blackstone. The Declaration’s principles allow government to regulate for the common good when such regulations don’t violate someone’s rights: setting weights and measures, for instance, or regulating the forms of contracts and whatnot. Barnett also defends these laws. But the Declaration does not allow government to tell us whom we may consent to have sex with in the privacy of our own bedrooms.

We know this, because there is a great example of a case where American practice came soon after the Declaration to differ sharply from British. That is, religious freedom. The British Constitution allowed the state to regulate the religious beliefs and practices of the people on the grounds that doing so was “intended to protect public morality,” as Cramer puts it. Religious persecution was intended to protect the “common good.” And really, you must admit there’s a pretty good argument that it does so. I mean, it throws society into a real tizzy to have people disagreeing on such important things. Look at all the disruption that it causes. It’s better for “society as a whole” if religious beliefs can be regulated to make sure everything works out according to a central plan, right? Atheists could corrupt children and lead them astray. Quakers make it hard to fight wars. Catholics cause shortages of alcohol. (Ha!) Even Locke said it was okay to throw atheists in jail.

But Jefferson said, “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” It also does me no injury for my male neighbor to have sex with another man. It neither picks my pocket, nor breaks my leg. It is simply not a legitimate subject for government regulation, unless and until it harms me in some way.

The pretext by which conservatives claim the right to police private, adult, consensual sexual activity is that the “health of society” warrants it. But the philosophy of the Declaration does not give the government an unlimited authority to regulate for the “health of society” absent some harm to some actual person. That would be slavery, and not liberty: it would mean that the people do not consent to government, and that government is above the law of justice. Now, Cramer has three routes he can take. Either he can say that yes, the government ought to be able to tell us how we may worship, as well as whom we may sleep with—or he can explain why it’s okay for government to send armed agents into our homes to drag our loved ones from our arms, but not okay for government to throw those nasty old Catholics in jail for praying in private and thereby harming “society as a whole”—or he can repent and sin no more.

Oh, man: God, this is so depressing.

Greek love: Here’s an article about the movie Troy, (a movie in which I’m almost certain to be disappointed), and in the middle of it we get this same old tired fable: “The Greeks of Homer’s time—about 700BC—shared few of our notions of romantic love.”

I’ve complained before about this libel on our predecessors. What evidence in the world is there for the idea that Homer and his contemporaries lacked our notion of romantic love? We are supposed to believe that this emotion—long held to be the deepest, most profound feeling of which human beings are capable—was invented by the Courtly Poets, and that the Greeks, whose rich literature contains just about every other intellectual and emotional experience with which we are familiar, were somehow ignorant of it. We’re to believe that despite the Greek erotic poets; despite the fact that the Greek language even has three separate words for love; despite the wonderful love poetry that the Greeks left us, including Andromache’s desperate pleas in The Trojan Women, (written by Euripides, a man), or the poems of Sappho or the long philosophical discussions by Aristotle and Plato as to the nature of love.

Yes, these are all fourth century works, but are we to believe that things were that much different in Homer’s day? Yet Homer himself refutes this. The Odyssey is nothing if not a love story. The most moving scene in the Iliad, which I’ve always preferred to the Odyssey, is a private moment between Hector and Andromache and their young child, when Hector explains that he must go fight, though she fears he will die:

So saying, glorious Hector stretched out his arms to his boy, but back into the bosom of his fair-girdled nurse shrank the child crying, affrighted at the aspect of his dear father, and seized with dread of the bronze and the crest of horse-hair as he marked it waving dreadfully from the topmost helm. Aloud then laughed his dear father and queenly mother; and forthwith glorious Hector took the helm from his head and laid it all-gleaming upon the ground. But he kissed his dear son, and fondled him in his arms, and spake in prayer to Zeus and the other gods:“Zeus and ye other gods, grant that this my child may likewise prove, even as I, pre-eminent amid the Trojans, and as valiant in might, and that he rule mightily over Ilios. And some day may some man say of him as he cometh back from war,‘He is better far than his father’; and may he bear the blood-stained spoils of the foeman he hath slain, and may his mother's heart wax glad.”

So saying, he laid his child in his dear wife’s arms, and she took him to her fragrant bosom, smiling through her tears; and her husband was touched with pity at sight of her, and he stroked her with his hand, and spake to her, saying: “Dear wife, in no wise, I pray thee, grieve overmuch at heart; no man beyond my fate shall send me forth to Hades; only his doom, methinks, no man hath ever escaped, be he coward or valiant, when once he hath been born. Nay, go thou to the house and busy thyself with thine own tasks, the loom and the distaff, and bid thy handmaids ply their work: but war shall be for men, for all, but most of all for me, of them that dwell in Ilios.”

Does this sound like the sort of people who lacked a notion of romantic love?

Yes, I know that these trumped-up historians say, “no, no, we mean only that the Greeks had different ideas about what love meant.” Well, sure, but that is true of all cultures. The Chinese and the Mexicans and the Canadians and the Russians all have different ideas about what love means today, but it would be absurd to say that they don’t share our notion of love. Yes, Greek civilization was extremely harsh with regard to women; in some ways it was about equal to the treatment of women under the Taliban regime. But it would be ridiculous to say that Afghanis don’t have a notion of romantic love, and it would be equally absurd to say that of the Greeks of Homer’s or any other age.

“Unaccountable judges”: Judges are supposed to be unaccountable. That’s what makes them judges instead of just another legislative branch. They exist so that there will be a branch of the government independent of the majority. This is why the conservatives scream about this whenever they know that the majority is on their side—like on the gay marriage issue, for instance. One of the surest signs of a demagogue is that they attack judicial review.

Madison explains that “[i]f a majority be united by a common interest, the rights of the minority will be insecure,” and that “[t]here are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.” Judicial review is the first method. Madison acknowledges that it is “at best...but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.” Of course, if you’re Robert Bork, you don’t think the minor party can ever have any rightful interests. But if you think that it can, and that the majority can be unjust, you must solve this problem. Hamilton goes on to say that “complete independence of the courts of justice is peculiarly essential in a limited Constitution.” Why? Because in a republic “designing men,” will propagate “ill humours” among the people, and the people will be stirred by their passions into “dangerous innovations in the government, and serious oppressions of the minor party in the community.” We therefore need courts to act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Since the majority has so much power, we need a counter-majoritarian institution like the courts to stop the majority from ignoring the Constitution. “Without this, all the reservations of particular rights or privileges would amount to nothing.”

This talk about eradicating the independence of our judges ought to be greeted with loud condemnations. Judicial independence is absolutely indispensable to liberty. Those who advocate the end of judicial review are seeking more power for the majority—that is to say, to make the most dangerous part of our political system even more dangerous than it already is. Would Brown v. Board of Ed have stood a chance without judicial independence? Would the great religious freedom cases have ever been written by a court that could be brought to heel by Congress? The majority does not need more power in our system—it has almost all the power there is in the world. What we need is more protection for freedom—and that means a secure and independent judiciary.

What you missed over the weekend: I had a delightful weekend going to the Whole Earth Festival at U.C. Davis, and observing the hippies. There are some…very unusual people in Davis. I’ve never smelled so much B.O. And there were enough dreadlocks to fit out the rigging of the H.M.S. Surprize. And the marijuana smoke! I think marijuana should be perfectly legal—but that doesn’t mean I want to have to smell that crap. But with al that…vastly preferable to the company of conservatives.

Anyway, Libertarian Bookworm discussed (briefly) John Locke’s Second Treatise. Plus, why the Declaration of Independence leads to Lawrence v. Texas.

More on the current flare-up: Jonathan Rowe has a couple new posts, Prof. Solum has added a link, and so forth. I’ll probably post a longer response to Owen Courreges’ latest, but I’m off to San Francisco for the day, so it’ll have to wait.

By the way, if you wonder why I didn’t refer to the Fourteenth Amendment in my post…. The Tenth Amendment says that states have only those powers not prohibited by the Constitution. The Fourteenth Amendment says that states may not violate people’s privileges or immunities or the due process rights or the equal protection rights. So Mr. Cramer’s Tenth Amendment argument is meaningless if these clauses prohibit the power in question to the states. The question then becomes whether laws like that struck down in Lawrence violate the privileges or immunities, or due process rights, and so forth. That requires a natural rights analysis as I was doing. Sen. Sherman, of course, cited the Declaration in explaining the privileges or immunities clause, because that clause was intended to incorporate the natural rights referred to in the Declaration against the states. Since I know that Prof. Barnett and others are going to do a fine job explaining the Fourteenth Amendment, I thought it best to focus just on the Declaration.

Mother’s Day: Happy Mother’s Day to Julie Sandefur, the best mother I ever had! And the best mother anyone ever had, actually.

Row over Rowe: [Update: Welcome Southern Appeal readers. Please see my responses to Courreges here, here, here, here, and most recently, here.]

Clayton Cramer attacks former Freespace guest-blogger Jonathan Rowe; he says that the state’s authority to prohibit private, adult, consensual sexual activity is recognized by the Tenth Amendment. He says this amendment “gives the states authority to outlaw murder, obscenity, price-gouging (for intrastate commerce), diploma mills, and thousands of other acts,” including private, adult, consensual sexual activity. But this is not right. The Constitution says that in 1787, the states are not deprived of any of the powers that they have in 1787, except where specifically stated in the Constitution. That’s essentially the meaning of the Tenth Amendment.

So to answer whether states have the power, we must look to where the states got their power before 1787. And that is in the Declaration of Independence. There, the “one people” of the United States declared that the states may “do all other acts and things which independent states may of right do.” (emph. added). The states do not have the power to do things which states may not do of right, and the Tenth Amendment conveys no greater power on the states. In other words, states have no right to do wrong, regardless of the Tenth Amendment. This is also the context in which the Ninth Amendment must be understood—the people have “other[ ]” rights, beyond the enumeration. These are the rights referred to in the Declaration, and which just government only “secure[s].” If that’s the case, then government may not justly deprive them of rights without some good reason—that is, there is a presumption of liberty, as Barnett has argued. Unless it can be shown that it is right for the states to send armed agents into your bedroom to drag your loved one from your arms, then the Declaration and its Constitution cannot convey that power.

I can hear it already—Courreges and these other (shall I call them) political-philosophy-agnostics saying “No, you’re getting into all that philosophical stuff, and you shouldn’t do that when talking about the law.” Nonsense. The question of what is a legitimate state interest cannot be answered by anything other than political philosophy. And the political philosophy of the founding generation is logically incompatible with laws like the one struck down in Lawrence v. Texas. Certainly the American people have accepted and written and voted for laws that are logically incompatible with the founding philosophy—they do that all the time; witness slavery.* But that doesn’t change the fact that the state has no rightful authority to regulate private, adult, consensual sexual activity, and that the Constitution can convey no such authority.

Cramer says “The people are, within these constraints, sovereign. They are free to pass all sorts of laws as they see fit.” But, once again, that is just the opposite of what the Declaration and the Constitution say. The “sovereignty” of the people is limited by the natural rights of those who are going to be regulated. As Jefferson put it, it is a “sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.” Just as there are “just powers,” there must also be “unjust powers.” And the people have no “sovereign” right to exercise unjust powers; if they try to do so, then the victims have the “right” and the “duty to throw off such government.” In other words, the people do not have any “sovereign” right to pass an unjust law. They are not free to pass all sorts of laws as they see fit. As Jefferson put it, “the people in mass...are inherently independent of all but moral law.” (emph. added; See also the Lincoln quote below).

So what is the difference between a just law which the people in the states have the right to pass, and an unjust law which the people in the states do not have the right to pass? The Declaration, again, suggests the answer. Government is institute to “secure these rights,” among which are the rights to life, liberty, and the pursuit of happiness. It does not exist to ensure that people, in the privacy of their bedrooms, are doing only things that Clayton Cramer approves of. Moreover, if it does the latter, then it is violating the rights that government is created to secure. The Declaration itself complains about “officers…harass[ing] our people,” and “arbitrary government,” and specifically repudiates Mr. Cramer’s belief that legislatures are “invested with power to legislate for us in all cases whatsoever.”

In short, the Declaration and the political philosophy behind it make clear that a just law is a law which protects the people’s natural rights: which “shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”

Without some proof that the state has the right to “protect” us from people having sex in the privacy of their own bedrooms, then, the state cannot lay claim to that power under the fundamental charter of our government—the Declaration—or under the Tenth Amendment, which only recognizes the powers which the Declaration conferred.

*-Prof. Solum has just posted a lengthy post referring to the importance of a thorough historical review of the original intent and original meaning of the Fourteenth Amendment. This is certainly indispensable, but it is also important to note that even if it was universal historical practice for American governments to illegalize private, adult, consensual sexual activity, that does not prove that this power is just. People ignore inconsistencies all the time, especially when these inconsistencies only harm unpopular minorities, such as slaves in the 19th century, or homosexuals today.

Fame!: Thanks to texasbestgrok, Jonathan Rowe, and Catallarchy for the links.

Libertarian Bookworm: The great grand-daddy of all libertarian books is John Locke’s Second Treatise of Civil Government. Because it’s so old (written in the 1680s) students tend to regard it as an artifact, or a burden, but in fact it’s quite readable, and just as relevant today as when it was published. Read it for its arguments, not for its “importance” or merely to chart its “influence.”

Locke’s argument wasn’t entirely original. Many of his most important ideas had been around for decades by the time he wrote. John Milton, or Algernon Sidney, had written essentially the same thing as Locke. Still, it was the Second Treatise that exerted the most profound influence on the generation that founded America. (Incidentally, a school of modern conservative historians try hard to downplay the influence of Locke. Because Locke’s arguments are so corrosive to conservatism, they try to claim that the founding generation didn’t really care that much for him. But the fact of the matter is that, as Bernard Bailyn puts it, Locke’s arguments were “clearly dominant,” “wholly determinative,” and “authoritative” among the founding generation. See Bernard Bailyn, The Ideological Origins of the American Revolution 30, 36 (Belknap, 1976) (1967).

Locke begins by challenging Thomas Hobbes’ argument that there’s no such thing as right and wrong outside the boundaries of government. For Hobbes, life without government would be a “war of all against all,” in which people would go about beating each other up and taking their resources. This isn’t a shocking insight, and Locke didn’t necessarily disagree. But Hobbes went further: he argued that there would be nothing wrong with such a situation. “Where there is no common power,” he wrote, “there is no law; where no law, no injustice.” In other words, without a lawgiver, pre-political man’s rights are created and defined by his capacity to defend those rights with the sword. Might really does make right: in the state of nature “there [can] be no propriety, no dominion, no mine and thine distinct; but only that to be every man’s that he can get: and for so long, as he can keep it.” In fact, without government, people have “a right to every thing, even to one another’s body,” because the only limit to their rights is their ability to enforce their claims through physical violence. Thomas Hobbes, Leviathan 101-03 (M. Oakeshott ed., 1962) (1651).

On this point, Locke disagreed. He argues that justice is not the same thing as the will of the lawgiver. “The State of Nature has a law of Nature to govern it, which obliges every one, and reason...is that law....” Right and wrong are not, as Hobbes argues, a social construct: “Truth and keeping of Faith belongs to Men, as Men, and not as Members of Society.” This means that the measures a state undertakes can also be an injustice. And this also means that people have rights even when there is no state around to protect those rights.

Since rights precede the state, then, the state cannot rightfully exceed the bounds of those rights. When it does, then it is not a “state” so much as a gang of robbers and or murderers: force without reason, Locke says, is aggression, whether done by a burglar or by the legislature. Government, therefore, rightly acts to protect their rights. They delegate their moral right to defend their natural rights, to the government (in part).

Locke also argues that the individual does not belong to others, but is an end in himself. But he does not argue that the individual owns himself outright. Rather, God owns the individual, because He created the individual. God then allows the individual to run his life—gives him a sort of life-estate in himself.

This is important because it is what allows Locke to argue that some rights are inalienable. Hobbes argued that, in creating society, individuals yielded up the rights they had in the state of nature. But for Hobbes, these rights were, as I’ve said, whatever the person could defend by force—including claims to own other individuals. Therefore, Hobbes said, when they create society, they give up absolute power to the state. Locke also argues that the people delegate the vindication of their rights to the government, but because he says those rights are simply the life-estate over the self, the people aren’t able to give up absolute power over themselves to the government. They don’t have an absolute power over themselves to begin with. This is how Locke responds to the commonly heard question, “Well, what if the people choose tyranny, or want to enslave themselves?” For Locke, not only can you not enslave an innocent person, because this would be stealing God’s property, but you also cannot enslave yourself, because this, too, would be stealing God’s property. Locke also uses this argument to say that the individual does not have the right to commit suicide. Atheist libertarians, like Ayn Rand, have disagreed with this, obviously. They argue that the individual owns himself outright. For them, however, the question of how these rights can be inalienable is a tougher question. Randy Barnett, in his recent Restoring the Lost Constitution, makes what I think is the only real answer to that: it is the nature of the right itself which makes it inalienable.

This is getting a little off track, but my point is that Locke’s arguments are still highly persuasive, and worthy of consideration by modern political thinkers—consideration for their own sake, not just for historical influence.

There is a lot more to Locke’s Second Treatise. Arguments defending the concept of property, or of the origin of natural rights from our capacity to reason, for instance. If you haven’t read it, you’re missing out on a wealth of powerful and insightful ideas.

Other Libertarian Bookworm entries are here.