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I Have a Dream–or Rather Had a Dream . . . about Griswold v. Connecticut

Dreams are surreal, of course, and often you wonder where in the world some dream could have come from. In this instance, though, I think I know: I suspect that my dream was prompted by a post on this very blog. In any case, it was a dream about Griswold v. Connecticut— the old, seminal (albeit anti-seminal) contraception decision.

In my dream, the case and the result were the same, but the reasoning was completely different. I forget who wrote the majority opinion. Harlan, maybe. Or White. Definitely not Douglas. There was nothing in the opinion about “emanations” and “penumbras.” No effusive (and, given Douglas’s authorship, ironic) paeans to the nobility and sanctity of marriage. It was a due process decision–but real due process. Procedural due process, not substantive.

Due process, the decision explained, means that restrictions on life, liberty, or property must be imposed in accordance with “law”; and “law” is not equivalent to official coercion, or to “whatever the government does.” Under that sort of conception, the due process clause would be pointless. The opinion went on to explain what “law” or law-like process entails. For this purpose, the opinion drew heavily on Lon Fuller’s (then quite recent) classic The Morality of Law, which had expounded what was sometimes described as a kind of “procedural natural law.”

Law, Fuller had maintained, is “the enterprise of subjecting human conduct to the governance of rules,” and this enterprise entails that legal enactments must satisfy, at least minimally, a number of requirements: generality, prospectivity, publicity, and so forth. These requirements follow from the nature of the enterprise. Fuller’s explanations were commonsensical, and powerful. Thus, an edict applicable only to some particular person or situation is not a rule. And people can only obey rules that have already been adopted, not rules that will be adopted in the future. People also can’t obey rules that are kept secret. And so forth. Official enactments or decrees that failed to achieve some level of compliance with these requirements were not actually “law.”

One of Fuller’s requirements was “congruence between official action and the law”– between what is sometimes called the law “on the books” and the law “in action.” Suppose there are lots and lots of enacted rules (so that hardly anyone can avoid violating some of them from time to time), but officials mostly leave the rules unimplemented, enforcing a rule only occasionally when there is some special reason to do so. Nobody would ever be convicted except under an enacted rule. And yet such a regime is not actually “rule of law,” but rather rule of official discretion– precisely what “rule of law” is supposed to free us from. This requirement– namely, of “congruence between official action and the law”– figured centrally in the majority opinion in the Griswold of my dream. Or at least, that’s how I remember it.

The opinion explained that a criminal prohibition that is duly enacted but then almost never enforced is not really a law in the due process or “morality of law” sense. It is true, the opinion conceded, that almost no law is enforced against every single violation– even against every known violation. There has to be some room for official judgment about whether and when to enforce a law. But when a law has been on the books for years, even decades, and when it has almost never been enforced even in the face of rampant, open noncompliance, government cannot just suddenly revive the law and enforce it against some hapless soul who is basically doing what everybody else has been doing with the government’s conspicuous acquiescence. And the opinion proceeded to elaborate with real passion and eloquence– so, yes, I suppose the author was probably Harlan rather than White– on how oppressive a government operating in this erratic manner might become.

Towards the end of the dream I had a glimpse of the aftermath– of the future. A few years later, when Roe v. Wade came before the Court, an argument was made that a right to abortion was somehow contained in or implied by the due process clause (even though nobody had realized this until just recently, more than a century after that provision had been adopted). The Court rejected this argument, 9-0, peremptorily and almost contemptuously. It was utterly far-fetched, the Court said, to suggest at this late date that the clause had anything at all to do with abortion. Abortion presented a difficult and important issue, to be sure, but like almost all other issues it should be dealt with through the normal democratic processes. As for substantive due process more generally, . . . well, that idea had been tried and thoroughly discredited. The Justices were not so reckless, the opinion explained, or so oblivious, as to head down that tortuous and disreputable path a second time.

Given this outcome, Eisenstandt v. Baird was never litigated. The case disappeared from history. Same for Planned Parenthood v. Casey. So the nation was spared sententious pseudo-philosophizing about “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” and pathetically hubristic pronouncements about the Supreme Court “call[ing] the contending sides of a national controversy to end their national division.” Of course, Romer v. Evans and Texas v. Lawrence were wiped out as well.

The changes were not all subtractions. For example, when a President began simply decreeing that selective provisions of an ambitious law regulating health care would not be enforced as provided in the law, Griswold was directly on point, with its exposition of the requirement of “congruence between official action and the law”and its eloquent warnings of the dangers of discretionary government. Likewise when the IRS was found to have been selectively targeting particular kinds of taxpayers based on their political stances.

And when divisive cultural issues arose– like abortion, or assisted suicide, or same-sex marriage– legislatures (aware now that they were the responsible decision-makers, not merely screeners for the Justices) debated and addressed these issues with due concern for their complexities, context, and history. For the most part, anyway: even in my dream, legislative decisions were not always wise, careful, or properly respectful. Still, they compared favorably in this regard with, say, Supreme Court decisions that dispose of difficult and culturally divisive issues by peremptorily declaring, without citing any cogent supporting evidence, that a majority has acted malevolently from “a bare desire to harm a politically unpopular group.”

There were also differences in the legal academy. Whole aisles of ponderous and visionary books about constitutional interpretation and rights to this, that, or the other disappeared from the libraries (thus opening up more space for student carrels). The glamorous fields that attracted the brightest and most ambitious legal scholars were more in the private law area. Some of the same names appeared, but in different contexts. For example, although this is hazy, I seem to recall the Bruce Ackerman was still prominent– but as a learned scholar of . . . was it property law? Jack Balkin made a cameo appearance in the dream as well– as a master of admiralty law, I think it was.

I don’t have many happy dreams, but this was definitely one. Alas, it was only a dream. Ah for what might have been!

Reader Discussion

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on July 21, 2014 at 10:46:19 am

Steven, it appears your dream was filled with reality; so long as the reader arrowed onto to what was “prompted by a post “. I believe you’ll hear from Mike Rappaport, either by personally notation, or in a (continuous) blog with the “view of the Privileges or Immunities Clause of the 14th Amendment”. I noticed your reference to “restrictions on life, liberty, or property must be imposed in accordance with “law”; and “law” is not equivalent to official coercion or to “whatever the government does.”
I am looking forward to Mike Rappaport’s additional blog(s) concerning his view(s) “of the Privileges or Immunities Clause of the 14th Amendment”. He is also a dreamer – of sorts.
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins
on July 21, 2014 at 12:43:29 pm

It is sad to see how far the Court has drifted away from the concept of interpreting the law. One of the "Get out of jail free cards" the Court favors is the term liberty in the due process clause. Justice Harlan rightly defined the meaning (quoting Blackstone) in his Plessy dissent: "Personal liberty, it has been well said, consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint unless by due course of law. The framers of the 14th Amendment were well aware of that limited definition. Out of that, as you point out, we get, "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” what Justice Scalia calls "The sweet mystery of life" phrase. I'm afraid dreams are no match for a Court that recognizes no limits on its authority.

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James W Cotter
on July 21, 2014 at 14:11:56 pm

The trouble is the rule requiring "congruence between official action and the law” would itself only be very haphazardly applied, subject to the whim of judicial discretion. And if it were applied with consistency, it would prove lethal to the administrative state.

It's far more consistent with the progressive project to do what the courts have done. Leave the administrative state in tact, while incorporating the sexual-revolution's anthropology into the Constitution.

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David Upham
on July 21, 2014 at 15:02:03 pm

You’re surely right, David, that what the courts have done is more consistent with “the progressive project.” (One happy part of my dream, of course, is that judicial theater of “the progressive project” didn’t ever materialize in the same way that it has done.) You’re right as well that as long as complete enforcement is impossible or undesirable, officials will have discretion about when and how to enforce the various laws.

I don’t think these observations necessarily preclude the adoption of Fuller’s insights in cases like Griswold. Fuller was quite realistic in recognizing that his principles reflected a “morality of aspiration”; they couldn’t be perfectly realized. Even so, they were not without practical value. In this context, it seems plausible that courts might normally defer to officials’ enforcement decisions, while interceding in cases where government suddenly decides to enforce a law has gone flagrantly unenforced over a considerable period of time. (There are obvious similarities here to the old doctrine of desuetude.)

So prosecutors fail to prosecute lots of robberies, maybe, because they don’t know about them, or they lack sufficient evidence to assure a conviction, or they don’t have the resources to investigate and prosecute thefts for relatively small amounts. This kind of discretion is tolerable, if regrettable. But if a law is on the books for years and has been enforced rarely or never, that seems different: Fuller’s principles would suggest a breach of morality of law if prosecutors suddenly decide to go after somebody. It’s surely true that there would be no bright line between tolerable discretion and impermissible erratic enforcement. But would that distinction be any more elusive than other slippery distinctions that pervade our law? Any murkier than “emanations” and “penumbras”?

I'm also not saying, of course, that Fuller advocated constitutionalizing his "morality of law"; he didn't. For very understandable reasons. Still, if we're imagining alternative histories, and given what has actually happened since then . . . .

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Steve Smith
on July 21, 2014 at 16:02:16 pm

James, are you James W. Cotter of Michigan State University?
Either way, I welcome your post. Very well put.
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins
on July 21, 2014 at 16:58:43 pm

Thanks. No, I'm not affiliated with any institution of higher learning.
Jim

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James W Cotter
on July 21, 2014 at 17:56:46 pm

James:

You forgot one, and if we in the US continue to parrot the Europeans we will soon be blessed with this liberty right as well - "the right to be forgotten" arising from an internet social media dispute.
Of course, if this sensitive soul truly wished to be forgotten, he or she would shut the #@#%$ up!. Although I do not see such a right in the Constitution, I am certain that some clever Black Robe may soon conjure it up.

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gabe
on July 22, 2014 at 10:13:49 am

If the standard was that "a criminal prohibition that is duly enacted but then almost never enforced is not really a law in the due process or 'morality of law' sense" then wouldn't Bowers v. Hardwick have been decided differently? I took a civil liberties course only a few years after that decision -- amazingly, taught by a conservative professor -- and one of the things I remember from the discussion of that case was that the law in question had rarely, if ever, been enforced.

Also, while this approach to law is preferable to substantive due process -- then again, what isn't? -- I wonder what effect it would have on a whole range of laws that aren't strictly enforced but whose existence seems to have a societal impact. I'm basically talking about those laws that people get away with violating in a minor way with relative impunity but nonetheless tend not to get violated in a major way by most. The speed limit, particularly on highways, comes to mind; I'd be financially comfortable if I had a nickel for every time a state trooper passed by me as I was going faster than the speed limit, but I, and most others, don't violate it by that much (the rule of thumb seems to be about 5 to 10 mph faster). Even though the law is not being enforced, it still seems to restraint the impulses of most people. Do you think the approach to law you lay out here would have any impact on these laws?

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Scott Fenngibbon
on July 22, 2014 at 14:39:35 pm

I'm more confident about the answer to your first question, Scott, than to your second one. I think that under the logic of dream-Griswold, Bowers would indeed have been decided differently. And I think that would have been a good thing-- among other reasons, because this outcome might have avoided the unfortunate and deeply flawed decision and reasoning (and I use the term loosely) of Lawrence v. Texas.

As for the second question, it's harder to say. Speed limits aren't at all like laws against contraceptives or sodomy; the speed limit laws are enforced every day. However, it's true that the police usually give drivers 5 to 10 miles per hour of leeway. So if a police officer suddenly starts enforcing a speed limit precisely, I believe that practice could indeed be viewed as in tension with Fuller's morality of law. Whether this sort of discrepancy should be viewed as a violation of fundamental due process, though . . . well, I'm more doubtful about that.

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Steve Smith
on July 22, 2014 at 15:17:36 pm

Steven,

Thanks very much for the thoughtful reply. I'm inclined to accept to the claim that the Due Process Clause requires that there be a "law" and that any law requires some measure of general, unpredictable applicability. I think the courts might be able to devise some defensible limitations or restriction, but I'm not sure what that limit would be.

In Griswold, the defendants knew the law existed and opened the clinic precisely to endure the not-exactly-draconian penalty of a $100 fine in order to test the law. Lawrence, in contrast, involved an unwilling defendant (at least initially) who was engaged in widely tolerated but technically illegal behavior in Texas.

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David Upham
on July 22, 2014 at 15:26:29 pm

The Constitution itself says what "shall be law". If Congress acts within its enumerated powers, and the president signs the bill, then it's a law. End of story. Once you start imposing all sorts of other requirements on what a law can be, then you're right back to substantive due process. Why would the Constitution speak of an "ex post facto law" if it's any oxmoron?

Steve Smith wrote: "But when a law has been on the books for years, even decades, and when it has almost never been enforced even in the face of rampant, open noncompliance, government cannot just suddenly revive the law and enforce it against some hapless soul who is basically doing what everybody else has been doing with the government’s conspicuous acquiescence."

That sounds to me like an equal protection argument.

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Andrew Hyman
on July 22, 2014 at 15:27:24 pm

P.S. Meant to say "if it’s an oxymoron?"

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Andrew Hyman
on July 22, 2014 at 20:31:20 pm

Andrew, Griswall was about a State law, and governed by State law. That also includes how that State handles its own “Due Process”. (In fact, not all States handle due process the same – so long as it is due process -- of the (State) law.) I, for one, don’t understand how the federal court gets to hear it, the law of the States now fall under the 14th Amendment – which, to my understanding, fall under Section V – to the federal Congress if any “equal” is questioned. Right does not follow equal, there, “protection” (of the law) follows. (Big difference.)
As for the sentence you mentioned by Steve – I do not believe Steve was questioning Connecticut’s State law, regardless of its age (?) Do we question the Constitution’s enumerations (law) because of its age?
Respectfully, John
(Facebook, author of The Tribute)

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John E. Jenkins
on July 22, 2014 at 20:42:02 pm

Correction; Griswall s/b Griswold
John

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John E. Jenkins
on July 22, 2014 at 21:09:21 pm

John, if a state chooses to ignore it when 9999 people violate a state law, but select one person for prosecution, fine, and imprisonment for the exact same behavior, that strikes me as a violation of the Equal Protection Clause, not a violation of the Due Process Clause. The protection is manifestly unequal.

I have no hesitation calling it a "law" because it's absurd to simply refuse to call something a law because you don't like it, no matter whether it's enforced selectively or not. The U.S. Constitution says what "shall be a law," and if it conforms with the enumerated powers and rights, then it's a law. Aquinas reportedly once said that "an unjust law is no law at all." But I don't think the Constitution was written that way. In fact, I know so. James Wilson said during the Constitutional Convention: "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason concurred that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." It may be unjust to only select a small percentage of people for prosecution under a law, but it's still a law. Whether it's equal protection is another question, and I am inclined to say it would not be.

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Andrew Hyman
on July 22, 2014 at 23:43:05 pm

Let me put it this way: my Griswold “dream” was meant to be a sort of thought experiment on this theme: could Griswold have been decided on different reasoning that might have been at least as persuasive as the reasoning that the actual decision used and unleashed, and that might have avoided some of the unfortunate consequences that (in my opinion) have followed? Interpreting “due process” in more procedural terms along the lines suggested by Lon Fuller offers an intriguing possibility, I think, and one that compares very favorably with the substantive due process jurisprudence that we have in fact suffered under.

Would there be problems with this more procedural approach as well? Of course there would be. I happen to think that they would not be as serious or as destructive as the problems with substantive due process. Be that as it may, I don’t think the objections raised by Andrew are really responsive to the suggestion. Andrew basically seems to embrace a more conventional positivist conception of “law,” as opposed to Fuller’s “morality of law” or “procedural natural law.” That’s okay; lots of people do the same. But Fuller gave some pretty powerful arguments for his view, and just declaring “That isn’t what ‘law’ means” isn’t really responsive to those arguments.

More specifically, it’s entirely possible for government to violate both equal protection and due process with the same actions. So it’s not really to the point to say that something would violate equal protection; it very well might, but that doesn’t speak to the “due process” question. And the Fuller/ dream-Griswold approach is emphatically not saying that “you can refuse to call something a law because you don’t like it,” or because it’s “unjust” or “oppressive.” On the contrary: it’s precisely that kind of judgment that the more procedural approach is trying to avoid. In short, a lot of what Andrew is saying seems to me more cogent as a criticism of the actual substantive due process jurisprudence that the actual Griswold produced than to the Fuller-type alternative that my “dream” imagined.

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Steve Smith
on July 23, 2014 at 02:10:36 am

Steve, why should judges adopt Lon Fuller's definition of "law" instead of Thomas Aquinas's? I don't see that you've given any reason. What I'm suggesting is that instead of pointing to whoever wrote what seems like the best definition of "law", we instead look at how the Constitution defines "law".

The Constitution is pretty clear. It says what "shall be a law". If both houses of Congress agree to act within their enumerated powers and without otherwise violating the Bill of Rights, and the president signs it, then that "shall be a law". The Constitution also speaks of "ex post facto laws" which would be impossible if an ex post facto action cannot by definition be a law.

Instead of ooking at the Constitution for the definition of "law", another possibly plausible approach would be to look at court decisions that define "law", or look at legal dictionaries that were prevalent when the 14th Amendment was adopted. But I don't see Lon Fuller's definition in any of those. On the contrary, I see Chief Justice Marshall wrote this: "Law has been defined by a writer, whose definitions especially have been the theme of almost universal panegyric, 'To be a rule of civil conduct prescribed by the supreme power in a State.'" See Ogden v. Saunders, 25 U.S. 213, 347 (Marshall dissenting) (1827). The most popular law dictionary in the 1860s was Bouvier's which defined law as follows in its 1856 edition: "law denotes the rule, not of actions in general, but of human action or conduct." Again, these don't get me to the Lon Fuller view.

If Equal Protection can easily do the job, why stretch the definition of "law"? Once it's stretched, anyone can stretch it some more on a whim. I haven't adopted a "positivist" definition of the word "law" because that's the one I like best. I've adopted it because all indications are that that is how the authors of the Fifth and Fourteenth Amendments understood the term.

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Andrew Hyman
on July 23, 2014 at 02:19:10 am

To put it another way: I don't see what is nonsensical about having some laws that are not enforced at all, but rather are part of an honor code. An honor code or honor system is a set of rules or ethical principles governing a community based on ideals that define what constitutes honorable behavior within that community. The use of an honor code depends on the notion that people (at least within the community) can be trusted to act honorably, and there is often no enforcement mechanism at all, except self-enforcement.

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Andrew Hyman
on July 23, 2014 at 09:59:10 am

Then why have them as laws? Unless, of course, one accepts that the modern state does not recognize (nor want) the "moralizing" influence of church and other civic organizations.

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gabe
on July 23, 2014 at 10:10:09 am

'The Constitution is pretty clear. It says what “shall be a law”. If both houses of Congress agree to act within their enumerated powers and without otherwise violating the Bill of Rights, and the president signs it, then that “shall be a law”'.

Except that the Constitution doesn’t actually say this, does it? Article I, section 7 articulates the procedures that Congress follows to enact a law, but it doesn’t say anything about “without otherwise violating the Bill of Rights [or other constitutional provisions].” Andrew, following John Marshall et al., has added that part. With good reason. But the addition makes clear that Article I isn’t offering a comprehensive account of what “law” is, or of necessary and sufficient conditions to make a valid law. Something can go through all of the Article I, section 7 hoops and still not be a “law.” Of, if you prefer, you might say that the enactment is “law”– just not “valid law.” Makes no difference, so far as I can see.

But of course, the due process clause is also part of the Constitution. So something that is duly enacted but in violation of the due process clause[s] is also not a “law” if we follow this Marbury way of speaking. (If you don’t like this way of putting it, you can say that the enactment is a “law” but that its enforcement in this way would violate “due process of law.”) Whether Fuller’s account offers an attractive way of interpreting “due process of law” is a debatable question, obviously. But we get no help with respect to that question by citing Article I, section 7.

As it happens, equal protection jurisprudence hasn’t developed in a way that really does the work of Fuller’s “morality of law.” But probably it could have done. We can imagine an alternative history for equal protection, just as we can for due process, or for Griswold. So if you prefer equal protection, just plug that alternative history into the “dream”; attach Fuller to equal protection, if you like, rather than to due process. The thought experiment can still run the same way, I think.

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Steve Smith
on July 23, 2014 at 10:43:38 am

Just to be clear, I didn't misquote the Constitution. Article One says this:

"If any Bill shall not be returned by the President within ten Days (Sundays
excepted) after it shall have been presented to him, the Same shall be a Law,
in like Manner as if he had signed it, unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law."

If we consider the Constitution prior to addition of amendments, this quoted material is pretty clear as to what "shall be a law." That is not to say this law will necessarily be the supreme law of the land. The supremacy clause requires that "the Laws of the United States" must be made in "pursuance" of the Constitution to be the supreme law.

The original, primary purpose of the Due Process Clause, like the "law of the land clause" of Magna Carta, was to prevent he executive from depriving anyone of life, liberty, or property without any authorization from the legislature. It was basically a separation of powers provision. In the U.S., it also forbade Congress from depriving anyone of life, liberty, or property without authority from the Constitution. Instead, it has become one of the Supreme Court's primary weapons for striking down statutes that it disagrees with.

Anyway, I do appreciate this blog post, and its discussion of a constitutional rule against enforcing laws that have become obsolete through desuetude. Thanks.

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Andrew Hyman
on July 23, 2014 at 10:59:36 am

Many, many laws are never enforced, because no one ever violates them. The law that says the president's term is four years has not (yet) been violated.

Moreover, some parts of laws are just fluff without any enforcement mechanism. Those laws typically use words like "should" and "ought". If legislatures want to create such provisions, I don't see the problem with it.

By the way, Patrick Henry was a fan of ex post facto laws. His argument made sense, though I disagree with it. He reasoned that some person might commit an incredibly heinous deed, but the legislature had not yet imagined that someone might do such a thing, and therefore had not yet criminalized it. So, it makes sense for the legislature to create a rule that someone who has ever committed that deed shall be imprisoned. I don't like such laws, but they are certainly consistent with the definition of "law" prevalent at the founding.

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Andrew Hyman
on December 22, 2014 at 06:19:04 am

[…] a friendly president. What I would really like is a combination of presidential nullification with a robust doctrine of desuetude. Then, if presidents left the laws unenforced for a few years, they would cease to be laws, making […]

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Why the Open Borders Movement Should (Mostly) Avoid Emulating the Gay Marriage Movement | Open Borders: The Case

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