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Leaving Lochner Behind

What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.

“Wisdom,” Felix Frankfurter once remarked, “too often never comes, so one ought not to reject it merely because it comes late.” Allow me to explain.

Unlike most of my conservative colleagues, until recently I harbored sympathy for the pre-1937 notion that certain economic liberties are protected by the U.S. Constitution, even if they are not specifically mentioned (or, in constitutional law parlance, enumerated). I credit Clark Neily—the libertarian author of Terms of Engagement (2013)—for finally persuading me of the correctness of Robert Bork’s objection to “substantive due process” theories, such as the one employed by the U.S. Supreme Court in Lochner v. New York (1905), on the ground that they are untenable and ineluctably lead to decisions like Griswold v. Connecticut (1965), Roe v. Wade (1973), and Obergefell v. Hodges (2015). But I get ahead of myself . . .

Earlier this year, during a debate with Neily at the Manhattan Institute regarding judicial engagement versus judicial restraint, he reminded me of something I had written about economic liberties 35 years ago, as a 26-year-old lawyer. The essay, in the Spring 1982 issue of Policy Review—which at that time was published by the Heritage Foundation—contained some fulsome praise of Lochner as a constraint on rent-seeking in the political process. In hindsight, I realize that my essay exhibited the combination of enthusiasm and certitude that only an idealistic twenty-something can generate.

While I was hardly a doctrinaire libertarian at that time, my instincts as a devoted classical liberal were to accept the validity of “freedom of contract”—the basic instrument of capitalism—as a tenet of constitutional dogma. I had adopted Milton Freidman’s credo that economic freedom is a necessary, but not a sufficient, condition for political freedom. Since the Framers believed in freedom, and drafted a Constitution to preserve that freedom, I was willing to presume that they intended to protect voluntary contractual arrangements from political interference. Influenced significantly by Bernard Siegan’s vigorous defense of Lochner in his seminal 1980 book, Economic Liberties and the Constitution—a revelation in its day—I willingly suspended my disbelief and became an avid fan of the Lochner jurisprudence.[1]

My fervor was sufficient to attract the attention of a young lawyer, then in private practice, named David Bernstein, who cited my Policy Review essay several times in a 1992 paper he wrote for the Cato Institute, entitled “Equal Protection for Economic Liberty: Is the Court Ready?” Bernstein, of course, is now a distinguished legal scholar who took Siegan’s exhumation of Lochner to the next level in his insightful 2012 book Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.

Even in 1982, I held traditional—which is to say conventional—conservative opinions about other areas of constitutional law, including opposition to judicial activism and what were then (in the pre-originalism era) called “noninterpretive” theories of constitutional law.[2] But like the lifelong affection we have for the music we listened to in high school, my early attitudes about economic liberties stayed with me over the years, in part due to my friendship with Bernie Siegan. As a practicing lawyer, I had little inclination for scholarly reflection, and was later drawn to other topics in any event.

When, decades later, I revisited the subject of Lochner, as I did in a 2015 article in National Review, I toned down my 1982 zeal for substantive due process, stating simply that “most economic liberties and property rights unjustifiably lost their status as ‘fundamental rights’ in the 1938 Carolene Products decision, and the Court has improperly abdicated its duty to protect those rights.”

Unlike my conservative colleagues, such as Ed Whelan, who support judicial restraint across the board, and libertarians who embrace the theory of unlimited “unenumerated rights” pioneered by Roger Pilon and Randy Barnett, I found myself awkwardly straddling both camps. I was the atypical conservative who supported Lochner (judicial protection for economic liberties) but not an open-ended license for making up new rights. And so things stood going into the debate with Clark Neily in February. I was defending the principle of judicial restraint—“channeling Robert Bork,” I quipped—and Neily was defending the theory of judicial engagement.

A central area of disagreement between the two camps is the existence of “unenumerated rights.”  Neily used my past defense of Lochner to highlight the incongruity of my current advocacy of a limited judicial role. It was therefore logical for the debate moderator, the Manhattan Institute’s  Jim Copland, to ask me why I supported unenumerated rights in one context (economic liberties) but not elsewhere, such as sexual privacy, abortion rights, and same-sex marriage.

I responded by pointing out that economic liberties, unlike other aspects of personal autonomy potentially subject to judicial recognition as a due process “right,” had previously enjoyed constitutional protection; moreover they were “deeply rooted in the nation’s history” under the standard articulated in Washington v. Glucksberg (1997). There was, I added, a way to invalidate many misguided economic regulations and occupational licensure measures without invoking substantive due process: judges could simply refuse to recognize naked protectionism as a valid exercise of the police power. The reasoning of Lochner could be tweaked to cabin judicial discretion.

But the question lingered in my mind. Proponents of judicial restraint such as Bork and his frequent ally, law professor Lino Graglia of the University of Texas, regarded any and all invocations of substantive due process as illegitimate from an originalist perspective.  Conversely, the theory of judicial engagement draws no distinction between economic liberties and other unenumerated rights. For the advocates of judicial engagement, even resurrecting Lochner would not go far enough.

After some reflection, I reluctantly—and belatedly—acknowledged that my straddle was untenable. The two camps are incompatible.

Given a choice between judicial restraint and judicial engagement, I chose restraint. Mea culpa. Frankly, in making this decision, I was swayed by an increasingly mutinous judiciary and the Left’s capture of legal academia.

Let me spell out other factors I considered.

One was recognizing the allure of the “perfect constitution.” Professor Henry Monaghan wrote an insightful article in 1981 in the New York University Law Review[3] that made the often-overlooked point that legal theorists tend to regard the Constitution as embodying the values necessary for an ideal society. We “worship” the Constitution and are tempted to interpret it as if it represents whatever principles of moral philosophy we subjectively believe would produce justice. Frequently these track with our own economic and political beliefs.

Thus libertarians, and classical liberals who believe in the importance of free markets and contractual autonomy, can gaze into the Constitution and manage to find those values protected as rights. (Liberals tend to do the same thing, regarding abortion rights and same-sex marriage.)  It’s wishful thinking, of which I confess to have been guilty in my youth. Monaghan concludes with the observation that “perhaps the constitution guarantees only representative democracy, not perfect government.” Perfection, or “nirvana,” is a utopian concept.

Another factor was the enduring wisdom of Robert Bork. The former Yale law professor was shamefully denied confirmation to the Supreme Court in 1987—30 years ago. He died in 2012, and, unfortunately, his legacy is not as large and lasting as it should be. I am a big fan of the late Justice Scalia, but Bork had a more distinguished career than Scalia did as an academic, scholar, lawyer, and public official before joining the bench. (He served as U.S. solicitor general, was a partner at Kirkland and Ellis, then and now one of the nation’s finest law firms, and wrote a seminal work of law and economics in 1978, The Antitrust Paradox.) Had Bork been allowed to serve on the Court, I have no doubt that his jurisprudence would have been equally influential, if not more so. His 1990 book, The Tempting of America, remains an indispensable—even prophetic—treatment of the role of judges.

Last but certainly not least influential in my change of heart: the “Spirit of Liberty.”

That is the name of the famous address given by Second Circuit Judge Learned Hand, sometimes regarded as the most consequential jurist who did not serve on the Supreme Court, during World War II. Judge Hand, speaking to a large crowd in New York City’s Central Park on May 21, 1944 on “I Am an American Day,” paid tribute to the spirit of democracy—something now denounced in some circles as “majoritarianism.” For democracy to work, we have to have faith in the ability of our fellow citizens to make sound political decisions. Hand’s point was that the “spirit of liberty” ultimately lives in people’s hearts, not in courtrooms:

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

As the political theorist George Carey pointed out, if there is a sufficient consensus of moral values that would allow a court to overturn a law on that basis alone, why would we assume that the people’s elected representatives would act contrary to that consensus?[4] The Framers believed in self-government. The Constitution, after all, begins with the words “We the people.” Any theory that treats “consent of the governed” with contempt is highly suspect.[5]

I thank Clark Neily for helping to clarify my thinking.

[1] See Mark Pulliam, “Book Review,” Wake Forest Law Review 18 (1982), 971.

[2] See Mark Pulliam, “The Nihilist Challenge to Constitutional Law,” Southwestern University Law Review 14 (1984), 417.

[3] Henry Monaghan, “Our Perfect Constitution,” New York University Law Review 56 (1981), 353.

[4] George W. Carey, In Defense of the Constitution (1989, revised edition by the Liberty Fund, 1995), p. 140.

[5] See Roger Pilon, “Lawless Judging: Refocusing the Issue for Conservatives,” Georgetown Journal of Law and Public Policy 2 (2001), 6. Pilon wrote that “The courtroom, after all, is often the only institution that stands between us and the barbarians, however garbed those barbarians may be.”

Reader Discussion

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on August 07, 2017 at 09:27:32 am

Here is my problem, every single factor you gave as to why you decided between what you saw as two potential constitutional interpretations, had nothing to do with the original meaning at all. The modern judiciary, or academy should have no influence on what the original meaning is (they existed long after that original framing period). Are you not then reading into the constitution what you wish it would be given the modern judicary/acadamy? I see no quotes from founders that convinced you of the original meaning nor anything else from an originalist source.

While it is true that people sometimes read into the constitution what they wish the constitution was rather than what it really is, that doesn't prove anything about if this is actually occurring in this instance. You don't explain at all what the original meaning of the Ninth Amendment is or why it was considered so important that it be included in the Bill of Rights (even with the 10th, amendment it must have done something MORE than just a repeat of that).

I have to ask, what does same-sex marriage have to do with the Ninth Amendment? There is no natural right to have government recognize your marriage (government is never involved in the action of a natural right as the natural rights pre-exist government). Unless your talking about the right of gay individuals to have a marriage in a church that accepts them without being prohibited by government, there is nothing about the Ninth Amendment that should apply to the same-sex marriage debates at all.

I will give you that abortion rights do get mixed up in Due Process Clause or Ninth Amendment debates, but the key question is when is the baby alive enough to have rights? Once that question is answered, all the other conclusions derive from it, for at that point the baby has a right to life that can be protected by the government. It's a very hard question, but orthogonal to the Ninth Amendment questions (you can answer that question as "birth" or "conception" without any change to the understanding of the Ninth Amendment outside the context of abortion).

What do you mean by sexual privacy?

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Devin Watkins
on August 07, 2017 at 09:34:47 am

Your best in a long list of "bests". Not likely to be "bettered" anytime soon. Thanks.

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Derek Simmons
on August 07, 2017 at 12:02:52 pm

Too, it may be, that that old adage, "with age comes wisdom" is not so reliable as, "out of the mouths of babes".

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Paul Binotto
on August 07, 2017 at 12:07:35 pm

I agree, and find most, if not all, of what you say here to be very persuasive.

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Paul Binotto
on August 07, 2017 at 12:50:18 pm

Mark:

Hmmmm! Interesting, indeed. Kudos for the courage to change and the wisdom to perceive the need to do so.

BTW: OMG, I actually read the old Policy Review essay. Small world.

Now, a question:

I suspected for a short while that your (newfound) heightened acceptance of "restraint" to emerge. I gathered this from a piece (comments) you did on Civil Asset Forfeiture (or at least a mild defense of a the Judiciary deferring to the Legislative in this regard). Question: What do you perceive to be the potential pitfalls of "heightened" restraint when confronted with something cleary *unenumerated* as the Federales (and States) rights to seize assets without benefit of a trial / conviction. Yes, the Feds / State may argue that "due Process" has been provided in the sense that due process is ONLY that which (we say) is *due* - in short, we the Feds followed our process. Sorry, buddy, but that stash of cash in your kitchen cabinet is OURS as you probably were involved in something illegal."
And as you know, recovery of assets is also fraught with difficulty / obstacles even after the citizen is fully exonerated.

So are you to now accept the Government's actions because to argue against it would necessarily entail invocation of substantive due process? (I think there is another way around it BTW).

Anyway, your thoughts?

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gabe
on August 07, 2017 at 13:11:23 pm

"While it is true that people sometimes read into the constitution what they wish the constitution was rather than what it really is, that doesn’t prove anything about if this is actually occurring in this instance."

Good question - let me try to help:

1) This phenomenon is what I like to refer to as the *in-spiriting* of the Constitution.i.e., wherein one attempts to "infuse" the Constitution with broad liberty-loving generalities of the Declaration. Consequently, one may then *divine* all manner of heretofore un-realized, much less recognized, rights IN the Constitution. Thus, we have a living constitution with all manner of emergent, soon-to-be-recognized, rights that were never ORIGINALLY recognized, would never have been considered under the rubric of natural rights or even found to be socially / culturally acceptable.
2) My contention is that the Legislative ought to be guided by the "Spirit" of the DOI when crafting Law. However, once that Spirit is *tempered* in the Legislative process, the resultant Law is simply the Law as stated and no Jurist ought to attempt to "re-in-spirit" the Law to reflect his or her own vision of the Spirit.
3) Ultimately, as Mark says, and does Judge Learned Hand, the SPIRIT of democracy MUST reside within the people. Should it not, there is minimal chance that the Peoples Representatives in the Legislative will reflect that Spirit.

4) Again, Mark is quite correct here, in this regard, the Constitution WAS NOT found emerging from a burning bush redolent of smoke and flame. It was crafted by men, decent, knowledgeable men, with a fairly practical understanding of politics. Was it more likely that these practical men thought (intended) they created nirvana or a Republic. As Franklin"We have given you a Republic, see if you can keep it" (paraphrase, here, kiddies)..

We ALL do this - we make *venerated* that which ought to be honored and respected - but NOT MORE.
Are we all to become hagiographers in defense of this, yes, noble, but not sacred, document?

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gabe
on August 07, 2017 at 13:21:35 pm

It is odd that you mention the 9th Amendment in the context of original meaning. I understand from Pauline Maier's "Ratification" (2011) that Madison drafted amendments 1 - 10 himself and presented them for ratification in December 1791. Maier suggests he did it because the Federalists had promised a "bill of rights" would be added to the Constitution if ratified. Maier suggests that after ratification, the republican anti-Federalists, who had to go back to their farms, jobs and occupations, simply went to ground. Of course, they struck back in the elections of 1800 after 10 years of Federalist rule.

On its face, the 9th Amendment recites that the "rights" enumerated in Amendments 1-8 are not all of the rights retained by the people. The 10th Amendment addresses the "powers" retained by the sovereign states or the people.

The terms "general police power" and "sovereignty" may be treated as synonyms when construing the Constitution. The language of the 9th and 10th Amendments suggests that to the extent the Federal government detects rights that are not enumerated in the Constitution, these rights belong to the people and they are to be either vindicated or limited by the people acting through the states, not the Federal government.

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EK
on August 07, 2017 at 13:21:45 pm

I would like to hear how the decision in Loving v Virginia could have arrived at the right decision if not on substantive due process grounds; I know Prof. Franck advanced his own position in these regards. In my view, Prof. Arkes refutation carried the greater merit.

But, come now, Mr. Gabe, how long do you intend to withhold your work-around from the reading audience? Or are you giving the author a sporting-chance to advance your argument first himself?

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Paul Binotto
on August 07, 2017 at 13:22:02 pm

There are many different types of asset forfeiture, some civil and some criminal, based on different triggers and requiring various thresholds. As a policy matter, I am generally skeptical about the seizure of assets without proof of criminal wrongdoing. In certain cases, such seizures may violate "procedural due process." But I am not an expert and have not devoted sufficient study to the topic to opine. I'll bone up for a future column.

P.S. Policy Review was a great publication. Edited by John O'Sullivan. That same issue contained articles by Richard McKenzie, Allan Carlson, Charles Krauthammer, Dinesh D'Souza, Paul Johnson, and Russell Kirk.

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Mark Pulliam
on August 07, 2017 at 13:41:03 pm

EK:

Rather liked that!

So what does the conception of the 9th and 10th A's in your last paragraph tell us (or should tell us) about the P&I Clause(s) of the constitution and such things as professional licensing, marriage licensing, etc - heck, even lemonade stands?

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gabe
on August 07, 2017 at 13:56:53 pm

Look forward to the "future" column.

Yep, Absotively luvv'd Policy Review. Unfortunately, the missus during a cleaning frenzy disposed of old issues. Yikes!

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gabe
on August 07, 2017 at 14:00:54 pm

Arkes' refutation (and defense of natural rights) is NOT to my mind inconsistent with my belief that one ought not to *inspirit* the DOI into the constitution. Arkes approach presupposes an epistemology - a keen understanding of our moral roots - but not an active restructuring of a document that ostensibly incorporated all those understandings (yep, they missed some but we do have an Amendment process).

seeya

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gabe
on August 07, 2017 at 14:08:50 pm

"[T]hat the Legislative ought to be guided by the “Spirit” of the DOI when crafting Law" - "Ought" is the key word here, and the Framers were sufficiently suspicious of factional democracies to not rely on "ought" for good government or good laws. The Judiciary need not “re-in-spirit” anything to identify in law, that which issues from faulty and/or corrupted (moral) reasoning, as these substantive due process failures tend (in my view) to be glaringly apparent, even while they may be politically expedient to over-look or backed-into by legal finesse. For a court to simply to defer to what you call the "tempered [spirit] in the legislative process", could in the extreme be completely dispiriting, and, may be the courts own failure to not to provide checks on the other branch(es).

To do this (to not automatically defer in the sense described above) In my view, is the opposite of judicial activism. And, it might even be rightly criticized as judicial activism to dismiss substantive due process out of hand simply because legal theory holds that it is too subjective, or because a philosophical fad has taken hold of the polis making it politically untenable.

It is true the Constitution did not emerge from a burning bush, but is also true, that it should not, in an attempt to dispel this notion, be doused so thoroughly with water that it becomes a watered down, washed-up, fluid of its original self.

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Paul Binotto
on August 07, 2017 at 14:10:22 pm

Most originalists believe that Brown v. Board of Education and Loving v. Virginia are consistent with the original public meaning of the 14th amendment, which made the Constitution color blind. No need to resort to unenumerated rights gimmickry.

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Mark Pulliam
on August 07, 2017 at 14:30:09 pm

Yes, still I think Arkes counter argued rather convincingly that the outcome in Loving could not be arrived at under pure Originalist method, because the 14th Amendment still has nothing to say about marriage, and that, if the history leading up to the 14th's ratification is relied on for determining its original understanding and intent, the opposite outcome in Loving would be in order, because he cites clear reference (which I do not have at my fingertips here), that it was it was necessary to provide definite assurance to several key southern states that the 14th, if ratified, would in no way result in nullification of their existing state laws barring interracial marriage.

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Paul Binotto
on August 07, 2017 at 14:30:28 pm

Thanks to Mark for the backhanded compliment. I've got a full enough plate as thew head of Cato's criminal justice project that I don't have time to prepare a comprehensive response to this post. That said, I would offer a few points for

1. I'm afraid Mark does his ealier scholarship on the subject of unenumerated rights a real disservice. It is neither "fulsome" nor jejune, but rather serious and scholarly -- particularly in comparison to his more recent work, which consists mostly of thinly sourced blog posts. In all seriousness, the quality of his earlier scholarship was truly excellent, as you can see from this piece in which he reviewed Bernie Siegan's Economic Liberty and the Constitution: http://bit.ly/2ujaHpg. That doesn't mean he was right then and wrong now, of course; but there is certainly no comparison between the depth and rigor of analysis of his analysis then as compared to now.

2. Having devoted most of the past 20 years to litigating economic liberty cases and writing about the constitutional right to occupational freedom that the Supreme Court has correctly recognized for more than a century (while incorrectly categorizing it as nonfundamental for the past 80 years or so), I think I have earned the right to say that one simply cannot have a serious discussion about the constitutional status of economic liberty without addressing the Fourteenth Amendment's Privileges or Immunities Clause. I will not attempt to recaptiluate the arguments here, but suffice it to say that the day is long gone when one may simply dismiss the Clause with a rhetorical flourish as Robert Bork did when he famously compared it to an inkblot, or ignore it entirely as Mark does in this post. To be clear, there remain many competing theories about how to most faithfully interpret the Privileges or Immunities Clause; what has changed over the past 20 years or so is a consensus that the Clause may no longer be ignored or wished away with silly rhetorical ploys like Judge Bork's inkblot. One must, as my colleague Roger Pilon like to say, have a theory of the matter. If Mark has one, I hope that he will present it in the manner of his earlier scholarship.

3. Besides the obligation to wrestle with ALL of the potentially relevant text (including but not limited to that of the Ninth and Fourteenth Amendments), I believe opponents of judicially enforceable unenumerated rights have an obligation both to acknowledge and accept the frankly monstrous implications of their stated position. Among other things, this includes expressly embracing the Supreme Court's holding in Buck v. Bell that the Constitution says nothing about having one's reproductive organs ripped out by state-sponsored eugenicists. Of course, just because a particular result is monstrous doesn't mean the Constitution foribids it; and it is certainly possible that Carrie Buck's sole recourse was to the ballot box (although she was then too young to vote when the eugenicists first came for her at age 19 [http://bit.ly/2vfhptS], but old enough to vote when they actually sterilized her at 21 -- my, how much more complicated these constitutional questions are in real life than in a blog post).

4. Finally, I will close with an observation and a surmise. My observation is that the sort of selective judicial restraint Mark proposes (to take but one example where he favors a more engaged judiciary, Mark came out during our February 2017 Manhattan Institute debate as an ardent critic of Wickard v. Filburn, depsite having written less than two months before that it was only "arguably" incorrectly decided [http://bit.ly/2vftNtC]) has been steadily losing ground, particularly among thoughtful law students and younger lawyers who have not yet committed themselves to a particular position. Assuming that observation is accurate (which it may not be), my surmise is this: thoughtful people who come to the issue fresh reject the kind of reflexive judicial deference that Robert Bork, Lino Graglia (a former professor of mine), Mark Pulliam, and others advocate for three basic reasons: (a) even its most scholarly and eloquent proponents have been unable to offer a persuasive account of key constitutional provisions, including the Ninth Amendment, the Privileges or Immunities Clause, and the Due Process Clause, which may well be most faithfully read to forbid arbitrary restrictions of liberty (any libert) by the government, where arbitrary is defined as "not plausibly connected with the advancement of any legitimate government purpose"; (b) another thing proponents of restraint have been unable to address adequately is their inconsistent support for it: virtually without exception, in my experience, you will find that even the most ardent proponent of restraint believes judges should be active (I would say "engaged") with respect to enforcing at least some constitutional limits on government power, and those same people tend to have a real blind spot when it comes to how unpersuasive and frankly self-serving their attempts to explain/paper-over those inconsitencies really are; and (c) the philosophical argument for the existence of natural rights is quite strong, and the argument that the framers and ratifiers of the original constitution, the Bill of Rights, and the Fourteenth Amendment believed in natural rights and understood the Constitution as being situated in a universe (and polity) where natural rights exist is even stronger; to rip the Constitution from that philosophical framework and treat it as little more than a blueprint for the exercise of government power (and a small handful of limits) is to render the Constitution absurd and yes, even monstrous.

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Clark Neily
on August 07, 2017 at 14:30:43 pm

That's a nasty pop quiz.

The Article IV P&I clause is understood to require that state courts cannot treat a citizen of another state any differently than it would a citizen of its own state. No one has a problem with that.

Its use in the 14th Amendment has always been difficult. I would begin by culling the Constitution for the rights of individuals that it purports to protect against their state governments. There are not many of them; the right to a trial by jury, due process of law, equal protection of the law, no involuntary servitude unless convicted of a crime and the right to a republican form of government. There may be more but not many.

Clearly, the result is as Pulliam suggests. The states can do it and Lochner is very bad decision.

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EK
on August 07, 2017 at 15:49:37 pm

Thanks to Mark for the backhanded compliment. I've got a full enough plate as the head of Cato's criminal justice project that I don't have time to prepare a comprehensive response to this post. That said, I would offer a few points:

1. I'm afraid Mark does his earlier scholarship on the subject of unenumerated rights a real disservice. It is neither "fulsome" nor jejune, but rather serious and scholarly -- particularly in comparison to his more recent work, which consists mostly of thinly sourced blog posts. The quality of his earlier scholarship was truly top notch, as you can see from this piece in which he reviewed Bernie Siegan's Economic Liberty and the Constitution: http://bit.ly/2ujaHpg. That doesn't mean Mark was right then and wrong now, of course; but the depth and rigor of the analysis that accompanied his former position – and is lacking from his current position – at least raises some flags.

2. Having devoted most of the past 20 years to litigating economic liberty cases and writing about the constitutional right to occupational freedom that the Supreme Court has correctly recognized for more than a century (while incorrectly categorizing it as nonfundamental for the past 80 years or so), I think I have earned the right to say that one simply cannot have a serious discussion about the constitutional status of economic liberty without addressing the Fourteenth Amendment's Privileges or Immunities Clause. I will not attempt to recapitulate the arguments here, but suffice it to say that the day is long gone when one may simply dismiss the Clause with a rhetorical flourish as Robert Bork did when he famously compared it to an inkblot, or ignore it entirely as Mark does in this post. To be clear, there remain many competing theories about how to most faithfully interpret the Privileges or Immunities Clause; what has emerged over the past 20 years or so is a consensus that the Clause may no longer be ignored or wished away with silly rhetorical ploys like Judge Bork's inkblot. Instead, one must, as my colleague Roger Pilon like to say, have a theory of the matter. If Mark has one, I hope he will present it in the manner of his earlier scholarship.

3. Besides the obligation to wrestle with ALL of the potentially relevant text (including but not limited to that of the Ninth and Fourteenth Amendments), I believe opponents of judicially enforceable unenumerated rights have an obligation both to acknowledge and accept the frankly monstrous implications of their stated position. Among other things, this includes expressly embracing the Supreme Court's holding in Buck v. Bell that the Constitution says nothing about having one's reproductive organs ripped out by state-sponsored eugenicists. Of course, just because a particular result is monstrous doesn't mean the Constitution forbids it; and it is certainly possible that Carrie Buck's sole recourse was to the ballot box (although she was too young to vote when the eugenicists first came for her at age 19 [http://bit.ly/2vfhptS], but old enough to vote when they actually sterilized her at 21; either way, I imagine majoritarian politics was cold comfort for most of the 60,000 or so “socially inferior” Americans who were involuntarily sterilized during the 20th century).

4. Finally, I will close with an observation and a surmise. My observation is that the sort of selective judicial restraint Mark proposes (to take but one example where he favors a more engaged judiciary, Mark came out during our February 2017 Manhattan Institute debate as an ardent critic of Wickard v. Filburn, despite having written less than two months before that it was only "arguably" incorrectly decided [http://bit.ly/2vftNtC]) has been steadily losing ground, particularly among thoughtful law students and younger lawyers who have not yet committed themselves to a particular position. Assuming that observation is accurate (which it may not be), my surmise is this: Thoughtful people who come to the issue fresh reject the kind of reflexive judicial deference that Robert Bork, Lino Graglia (a former professor of mine), Mark Pulliam, and others advocate for three basic reasons: (a) even its most scholarly and eloquent proponents have been unable to offer a persuasive account of key constitutional provisions, including the Ninth Amendment, the Privileges or Immunities Clause, and the Due Process Clause, which may well be most faithfully read to forbid arbitrary restrictions of liberty (any liberty) by the government, where arbitrary is defined as "not plausibly connected with the advancement of any legitimate government purpose"; (b) another thing proponents of restraint have been unable to address adequately is their inconsistent support for it: virtually without exception, you will find that even the most ardent proponent of restraint believes judges should be active/engaged with respect to enforcing at least some constitutional limits on government power, and those same people tend to have a real blind spot when it comes to how unpersuasive their attempts to explain those inconsistencies have thus far been; and (c) the philosophical argument for the existence of natural rights is quite strong, as is the argument that the framers and ratifiers of the original constitution, the Bill of Rights, and the Fourteenth Amendment believed in natural rights and understood the Constitution as being situated in a universe where natural rights play an extremely important role in moral and political philosophy; thus, to rip the Constitution from that philosophical framework and treat it as little more than a blueprint for the exercise of majoritarian power (subject to the very small handful of limits expressly enumerated in the text) is to render the Constitution absurd and yes, even monstrous.

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Clark Neily
on August 07, 2017 at 17:34:21 pm

I think where Arkes may be mistaken is in relying to heavily upon Senator Trumbull for legislative intent" - when he may have relied more upon John Bingham (the actual *crafter* of the 14th) for the intended scope of the Amendment.
What you would then observe is that the various "intents* of the moderate GOP, the Radical Republicans, and yes, even some Unionist Democrats, were *tempered* ionto the fine words "crafted" and shepherded through, by John Bingham.

You need not limit yourself to the 14th for un-prophetic Senatorial claims about the intended limits of legislation intended to correct certain racial disparities. Look only to 1960's Civil Rights legislation wherein numerous and specific claims were made that these bills would not leaf to quotas.

Yet, here we are AND the Judicial Branch has seen fit to *in-spirit* the legislation with their own particular conception of legislative intent and justice.

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gabe
on August 07, 2017 at 17:49:17 pm

Mr. Neilly:

I suspect that you are quite busy; as an avid reader of this site, I thank you for the response. quite informative.

One quick question (one I repeatedly pose to both "engagers", activists and "restrainers":

How do you limit the "engagement" , how do you hold back, the ofttimes *exuberant* spirit of / for liberty, peculiarly possessed by some jurists, and confine it to an examination of what a reasonable examination of the rights enumerated and "un-enumerated contained / secured by the document?

As an poster cites Arkes. let us take *natural rights* a la Arkes and conclude "gay marriage" is not, nor was it ever intended to be part of the "rights" secured by the constitution. Here Arkes proposes a natuiral limit on rights, or perhaps as academics prefer, a means of cabining judicial exuberance.

In a nutshell, this is what it appears to come down to: How do you limit "activism" or engagement?

BTW: I prefer Kurt Lash's take on P&I Clauses. I think Mark could look to that for support of economic liberty and not sub due proc which compels him to abandon any form of engagement.

BTW2:

Anything interesting in the works from you at Cato?

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gabe
on August 07, 2017 at 18:45:05 pm

You know by now, Mr. Gabe, that I very much respect your reasoning, but I am not thoroughly persuaded here. It seems the most that could be gleaned out of the 14th Amendment in Loving is the right for African Americans to marry, but not a grant for Blacks (and the argument wouldn't be limited to blacks only, because, did not the law's barring of interracial marriage apply to whites as much as it did to blacks (if I am not mistaken, both black Mrs. Loving and white Mr. Loving were prosecuted and each plea bargained to a suspended one year prison sentence, on the condition they leave Virginia for a span of 25 years)?

I appreciate the distinctions you offer, still I remain yet unconvinced that there is anything in the Constitution, whether the 14th Amendment, or elsewhere, that could produce the correct outcome, (and I believe it was the correct one) by a pure originalist method in Loving. But, only by appreciating the substantive due process flaw in operation in Virginia's law, and then by applying substantive due process analysis to the case, could the court get there.

Best always, Paul

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Paul Binotto
on August 07, 2017 at 21:56:56 pm

Paul:

Best to you as well - BUT, I think Mark is correct. there are other means to arrive at the correct decision - Eq Prot; P&I of BOTH the 14th and the 4th (stretch maybe) could be construed to cover the issue - especially if one understands the P&I Clauses to cover unenumerated rights protected by the 9th and 10th Amendments - an argument I have heard advanced,

Ultimately, the problem is how do you stop *the substantive* express* when modern jurists, while reading their tea leaves discern all manner of substantive rights?

take care

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gabe
on August 07, 2017 at 23:38:58 pm

Thanks, Mr. Gabe, and I am sure there is a great deal of merit in what you say.

In my view, the key to keeping the brakes on the Liberal Jurist Run Away Substantive Express may best be accomplished by vigorous substantive due process debate by conservative jurists in order to effectively expose, counter, and dispel the faulty moral reasoning employed by Libs. The Libs, whether they will admit it or not, advance poor moral reasoning that too often goes unchallenged and further erodes the constitution in the process.

It is my view that Originalism is appropriate and preferred in the majority of cases; and too that it is better these moral debates take place during the legislative process. But, there are instances, I think, that a bad law may survive procedural due process scrutiny, and even originalist scrutiny, but fail substantively, but because the liberal jurists espouse the same faulty moral reasoning as the legislature and/or executive, and because the conservative jurists won't consider the substantive because they dismiss it out of hand as subjective and improper, that outcome is unjust. When this occurs, I think the Judicial Branch has failed to adequately check the Legislature, and may improperly reflect the actual plurality and portray a consensus that does not exist among the jurists or among the polis.

But, I totally get your concerns, they are very real concerns and they are well founded.

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Paul Binotto
on August 08, 2017 at 06:25:31 am

America was 'founded' by the Declaration of Independence and it was all about Liberty, God's law not man's law. I am not certain when freedom, rights, democracy, etc. became synonymous with Liberty. They are not.

The Articles of Confederation and The Constitution are all about limiting government. The Constitution and the Bill of Rights are continually perverted by the executive, legislative, and judicial branches.

For the most part, the leaders, some call them Founders and Fore Fathers, had a deep understanding and reverence for God's law. I find that legalese has done little to nothing, except to provide a very formal, scholarly way to attempt to make man more important than God, and provide for ways to expand government. It has happened for all of mankind's existence and to think the United States of America is different is supreme arrogance.

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Terry Schuck CPCU
on August 08, 2017 at 08:31:28 am

Oh my. It appears that your reconstruction has a way to go. The fourteenth Amendment didn't make the Constitution color blind. It required the states to treat whites and blacks equally with respect to "some fundamental" rights. For example, the revised Constitution still allowed the states to refuse blacks the right to vote (albeit with the loss of head count). It is evident from the debates in the 39th congress that discrimination was rampant in the North. Their intention was to provide relief from oppressions such as the Black Codes, not complete equality.

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Willmoore
on August 08, 2017 at 08:34:51 am

What does SSM have to do withe the Ninth Amendment, Devin? Pretty much everything.

Some would argue that the right to gay-marry is fundamental. Others respectfully disagree. But no one has ever articulated where a distinction is drawn in the Constitution between fundamental and non-fundamental rights, or how judges can reliably tell the difference. Madison would have found the distinction nonsensical. In introducing his draft of our Bill of Rights to the House of Representatives, he explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that

"….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

1 Annals of Congress 456 (1789) (remarks of Rep. Madison). The clause Rep. Madison refers to reads as follows:

"The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Id. at 452.

This is the Rosetta Stone for interpretation of our modern-day Ninth and Tenth Amendments. While the Ninth doesn’t create rights, it is a constitutionally mandated canon of construction, prohibiting judges from interpreting the Constitution in any manner that would "deny or disparage [unenumerated rights] retained by the people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers to "the States respectively, or to the people." Id. amend. X. As such, government can only infringe upon those rights that were willingly relinquished by the people, and only when needed in order to discharge its legitimate duties as our authorized agents. Professor Barnett refers to this foundational concept as "the presumption of liberty." Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).

Even if you accept the fundamental/non-fundamental distinction invented by judges, you still get to the same answer. The right to contract is a necessary corollary of the right to own property which, in turn, can be limited pursuant to the police and commerce powers. ln a secular society, "marriage" is no more than a contract (with default terms drafted by the State). Problem is, there is no coherent police or commerce clause argument that can be made for impairing the parties right to contract. That it makes your Widdle Baby Jesus CWY is not a constitutionally sound argument.

lf truth-in-labeling laws applied, the Federalist Society would be renamed the "l Hate Roe Society," as they are engaged in the same desperate species of constitutional eisegesis they accused Earl Warren of, in order to have the Constitution endorse their provincial worldview.

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LawDog
on August 08, 2017 at 08:53:00 am

I think this is something we can both whole-heartedly agree on: http://thefederalist.com/2017/08/08/time-repeal-17th-amendment-end-direct-election-senators/#disqus_thread

Care to join the "repeal the 17th" movement with me?

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Paul Binotto
on August 08, 2017 at 09:02:44 am

"Of course, just because a particular result is monstrous doesn’t mean the Constitution forbids it"

Correct! The eighth amendment only forbids "cruel" and "unusual" results, not "monstrous" results. As North Korea has morally-righteously claimed, there are a great many "monstrous" things they can deliver unto their people that are not forbidden by the term "due process" or "cruel and unusual punishments". We can only put sanctions on North Korea for "cruel" or "unusual" actions, but they are perfectly morally free to do any number of truly "monstrous" things to their people.

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Kimmy June
on August 08, 2017 at 09:15:20 am

I notice Sir or Madam, that you are not man or woman enough to make these egregious and bigoted remarks about Christians using your actual name. What you say may contain elements of truth, but none so telling as this.

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Paul Binotto
on August 08, 2017 at 09:59:59 am

Gabe:

l would argue that the P/l Clause has been swallowed whole by SDP, but the States' freedom of action has been severely constrained by the 14Am. lt seems to me that P/l would, at bare minimum, encompass the 1Am, RKBA, and the unenumerated right to travel. Read in pari materia, it appears that the goal was to apply the BoR to the States, owing to the fact that the States could not be trusted to do it without supervision. lt is a fair reading of Rep. Bingham's intent, and consistent with the text itself.

lt largely disembowels the States' Rights Clause of the Tenth, but that appears to be what they had in mind. The modern-day conservative wants to impose his (generally, religious) worldview on individual States, but COTUS seems to have none of it.

As for professional licensing, Justice Willett's (SCOTX) concurrence in Patel is the gold standard. His sound analysis has applicability with respect to your other concerns.

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LawDog
on August 08, 2017 at 10:22:19 am

I reject the Fundemental/non-Fundemental distinction which does not appear in the text nor any Founding era source. Instead the rights desribed in the Ninth Amendment are natural rights which pre-exist government. As such government recognition of a marriage can never be a natural right and therefor cannot be a Ninth Amendment right.

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Devin Watkins
on August 08, 2017 at 10:34:22 am

With all respect, Paul, it appears to be the only argument the Talibani strain of Christians (many embrace Matt. 7:12) has left wrt SSM. They are the lSlS of Christianity: they are uncomfortable unless women are wearing the proverbial chador. They--including lawyers l count as personal friends--are still advancing the argument, albeit under fairer cloak. But distilled to essentials, it is the argument of the Sekulow/Schlafly crowd. They fear this brave new world ...

My comments are sarcastic, but not bigoted, insofar as l do not paint all Christians with the same brush. But if l need to be more explicit, l will merely say that most Christians are "not with stupid."

WRT SSM, l don't have a dog in the hunt. But COTUS locuta est, causa finita est. The Constitution has spoken, and my personal opinion doesn't count for squat. Either you will accept it as originally written--Justice lredell called it a "great power of attorney"; it is a treaty, creating an express and limited agency--or you do not. WRT abortion, the 5/14Am only protects "persons," and at common law, it did not protect fetal life (abortion before quickening--the essential holding of Roe--was permissible at common law, to Lord Coke's chagrin). What you or l might think is irrelevant (unless you are a disciple of Larry Tribe); the only legitimate remedy for those who oppose it is to pass a constitutional amendment.

Based on the above, what part of my comments do you find "egregious"?

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LawDog
on August 08, 2017 at 10:40:56 am

Yep! Fair enough. Our other readers may also recall that Bingham also had an understanding of the P&I that was somewhat more limited than that proposed today by many libertarians. And yep, it does seem as if the intent was to severely restrict "States rights" (state sovereignty and police powers).

BUT, I think it may be a stretch to imply that the urge for some conservatives to impose their *own8 view on State "policing" actions is exclusively or primarily motivated by a religious impulse. doubtless, there are many examples of this; yet, it is also possible to possess and profess such attitudes even if one starts with a natural rights foundation or traditional moral codes.

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gabe
on August 08, 2017 at 10:45:42 am

Devin, how is recognition of the marriage contract materially different from its recognition of our contract for the sale of my car?

On DeFoe's desert island (or in the Lockean wilderness), Robinson Crusoe can agree to marry Friday. lt is like any other contract. lf the fight to contract falls under the ambit of natural rights--it is an essential corollary of the right to own property--then it cannot be credibly argued that it is not contemplated by the Ninth.

We can void contracts for the sale of marijuana of for sexual services under the police power, but what is the source of the government's power to void the SSM contract?

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LawDog
on August 08, 2017 at 10:50:16 am

Your comments speak for themselves. As do mine; and I see no reason here, now to retract or clarify them. Your further comments serve only a mere confirmation.

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Paul Binotto
on August 08, 2017 at 10:50:34 am

That's why l said "generally." There are conservatives who are not motivated by religious views, but they are few and far between. The essential conflict is between Lockean (libertarian) concepts of natural law and that of Aquinas, and the non-religious man tends to discount the latter.

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LawDog
on August 08, 2017 at 11:03:33 am

Mark:

With respect, l take umbrage at the reference to the protection and/or recognition of unenumerated rights as "gimmickry." Either you have the right to enter into contracts, or you do not. That right--along with the right to revolution recognized and invoked in the Dol--is so basic and so fundamental to ordered liberty that it doesn't need to be enunciated. Loving could come out of either the P/l Clause or the LLP Clause, but come out it must.

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LawDog
on August 08, 2017 at 11:05:16 am

I'm not saying there is a police power to void a marriage contract. I'm just saying that you have no Ninth Amendment right to the government to consider that you are married. You may have a unique definition of what you think marriage is, and for the two (or more) of you that may be fine, but that doesn't mean the government or anyone else must agree with your definition of marriage. Contracts can define their own terms, and they are valid in the scope of that contract, but that doesn't mean everyone else has to agree with those terms. There are problems under the Equal Protection Clause if government services and benefits are provided to straight couples but not gay couples, but this should have nothing to do with the Ninth Amendment or the Due Process Clause.

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Devin Watkins
on August 08, 2017 at 11:06:30 am

Very quickly, you do a couple of things: (1) understand that judges will never be perfect, so you have to decide between (a) a rapacious legislature and administrative state that are largely unaware of and wholly indifferent to constitutional limits on their own power and who answer to no one (that is -- and indeed has been since 1937 -- the practical result of Mark's call for judicial restraint, which comes directly from Progressive-era theorists like Thayer and jurists like Holmes and Hand); or (b) an engaged judiciary that will, like all human institutions, make errors from time to time, but at least they will be errors of application (i.e., getting particular cases wrong) rather than errors of conception (i.e., that it is appropriate for judges to embrace their truth-seeking role in some cases and abandon it in others); and (2) recognize just how untenable it is to randomly protect some unenumerated rights (e.g., to travel; marry, have, and raise children; defend oneself against sudden violence; etc.) while ignoring/disparaging others (occupational freedom -- arguably the single most "fundamental" and quintessentially American right there is; property rights, etc. As best I can tell from all of his wrintings and all of the times I've debated him, Mark does not have any serious response to this "protect-some-unenumerated-rights-but-deny/disparage-others" approach that is both the hallmark of current doctrine and seems an invevitable consequence of his stated position (unless he actually proposes to withdraw judicial protection for ALL unenumerated rights, a point on which he has been coy at best, as I recall. People who throw rocks at judicial engagement should take a more critical look at their own glass houses and the utter incoherence of the modern constitutional doctrine they espouse. In short, when you have someone as smart as Robert Bork -- a self-professed TEXTUALIST, for goodness sake -- resorting to silly rhetorical ink blots in order to deal with inconvenient text, you should realize something's amiss. (Oh, and I like Kurt Lash very much. I've not read his book, but I debated him on P&I while he was writing it. For a variety of reasons, I predict his take on P&I will not catch on with anyone other than Borkeans looking for a non-ink-blot life preservers and Progressive statists looking to disempower judges from protecting economic liberty and property rights in particular.

And yes, interesting things in the works from Cato. Preview: Can the Supreme Court really be correct that putting peaceful citizens in a cage is no big deal and therefore the state need offer no honest explanation for doing so? We've got lots of other things in the works, of course, but when you have a system that's based on a philosophical blunder as enourmous as that one...let's just say you inevitably get a lot of downstream injustice and idiocy as well.

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Clark Neily
on August 08, 2017 at 11:09:16 am

Will, the 15th cures this deficiency: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Racism drove the early cases, but that was constitutional eisegesis by the Court.

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LawDog
on August 08, 2017 at 11:43:37 am

Which "god" should we be listening to? ElRon Hubbard? Quetzlcoatl? Odin? The Blinding Light of the Holy Glowing™ Form of the One Toupeed and Gloriously Bloated Shatner? Locke's innovation is that natural law does not require that we prostrate ourselves before an imaginary ancient tribal sky-daddy.

(As you can see, Paul Binotto, Terry resembles my remarks. They are enamored with theocracy, provided that they get to be the theocrats.)

Our Constitution makes a national societal choice of a personal god unnecessary. This, in turn, is in keeping with both the essential nature of the Colonies (many religious dissenters) and the central teaching of Jesus: "So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets." Matt. 7:12. lf you would object if Al'lah was made the national deity, then you shouldn't name your own as one.

The underlying premise is that government has no business coming between a man and his god(s). lf your god is Al'lah, Tiamat love ya! But as long as you don't force your religion on me and vice versa, we can coexist in peace. (Ever since Man invented the concept of One True God, men have been killing other men in His/Her/lts name.)

Law is merely a codification of the social contract.

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LawDog
on August 08, 2017 at 11:56:40 am

Please in the exercise of your Progressive Brow-beating and belittling, do not attach my name in anyway to the comments that you yourself, are not courageous enough to attach to your own. This is most polite way I know of telling you to [email protected]#k off.

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Paul Binotto
on August 08, 2017 at 12:10:31 pm

Devin:

While it can be argued that government has no business involving itself in marriage at all, once it chooses to recognize marriages and bestow marital benefits, the right to equal justice under law is implicated:

"[N]o State can deprive particular persons or classes of persons of equal and impartial justice under the law. Law, in its regular course of administration through courts of justice, is due process, and when secured by the law of the State, the constitutional requisition is satisfied. And due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice."

Caldwell v. Texas, 137 U.S. 692, 697-98 (1891) (citations omitted).

To say that an interracial couple couldn't get married was an arbitrary exercise of governmental power. This decree was struck down in Loving; no one seriously questions that today. How is this any different from SSM, if marriage is a simple contract with no soteriological impllications?

The philosophical question is whether equal justice under law--readily traceable to Magna Carta (1215)--is an essential civil right. Remember Hobbes's transaction: When entering a society, we agree to give up some of our "natural rights" and assume certain obligations (e.g., to pay taxes), in exchange for a portfolio of "civil rights." Would you have even entered into that contract, if that right did not exist? See Marbury v. Madison, 5 U.S. 137, 163 (1803).

We speak about the EP component of DP; this is emblematic of the concept. Unless you can come up with a legally salient distinction between OS/SSM, the government has no lawful authority to discriminate between the two. Opponents of SSM literally had 100 opportunities to do so (l counted them), and failed. Whether you or l as private citizens disagree is of no moment.

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LawDog
on August 08, 2017 at 12:35:56 pm

Ok, I understand your Due Process arguments, if you want to go so far as to incorporate equal protection principles under the rule of law and the Due Process Clause, that is fine. (In some ways the Court is already doing that through reverse incoporation). I will grant you that under what you refer to as the "EP component of DP" that you can reject discrimination against gay individuals without cause. I still think its a stretch to reach the Ninth Amendment unless your talking the very broad right to be treated under a rational rule of law (which is again the equal protection rights).

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Devin Watkins
on August 08, 2017 at 12:46:54 pm

How do l know that "Paul Binotto" is your real name? And logically speaking, why would it matter? Arguments are independent of the persons making them.

"The Libs, whether they will admit it or not, advance poor moral reasoning that too often goes unchallenged and further erodes the constitution in the process" and "the liberal jurists espouse the same faulty moral reasoning" read an awful lot like conservative "brow-beating and belittling," displaying the kind of naked bigotry you (erroneously, in my case) inveigh against. "He who is without sin may cast the first stone."

As an originalist, l abjure the very concept of a living Constitution; as a libertarian, l can find no warrant for a "moral" component to legal decision-making. Constitutional eisegesis is as odious when a Scalia or a Gorsuch does it as it is when Kagan indulges. lt is above their pay grade.

You can tell me to "[email protected]#k off"--with all the tact of Donald Trump, if you so choose. You can totally ignore me. But that doesn't preclude me from responding to your smears in this open forum.

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LawDog
on August 08, 2017 at 12:51:29 pm

Devin:

The right to contract is an unenumerated right--it gets us into the church. DP/EP gets us into the pew.

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LawDog
on August 08, 2017 at 13:46:58 pm

It matters because it takes no courage to spout bigotries behind the safety of a moniker. If you have anything worth saying its worth putting your name to it. And, you actually have many intelligent observations to offer here, but your credibility is lost in your need to belittle someone for holding believes contrary to your own.

I suspect totally ignoring you is about the worse possible thing you can ever imagine someone doing to you, so from this point forward, I will do just that.

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Paul Binotto
on August 08, 2017 at 14:14:35 pm

Lawdog:

Question for you (and it is NOT intended to be contentious nor is it eisegesisticsally impelled - ha!):

So if Law is NOTHING more than the *codification* (a view I both understand and once contemplated, BTW), WHY is it not permissible to say ban gay marriage, or for that matter ban traditional marriage?

I suspect you understand what I am getting at?
What is the underlying predicate? What are the premises upon which the social construct (I dislike "contract") is based, motivated and sustained?

If nothing but a codification, why are we not free to codify say a slightly pudgy, cheap toupeed, wannabe Starship Captain as our Enduring Deity. (Gee, would the guy with the pointy ears be Satan in this drama)?

Also, if I may: As my tailgating brethren say,"Lighten up, Dawg, on the sarcasm" - It REALLY does detract from some otherwise very fine, informed commentary. (Of course coming from a curmudgeonly satirist such as I, you may freely disregard this advice).

Take care and hope to see ya around these parts more, Dawg!

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gabe
on August 08, 2017 at 14:18:22 pm

Thanks again; look forward to the Cato essays.

Agreed on the split between fundamental - non-fundamental being untenable.

Basically am suspicious of any all encompassing theory of judicial construction behavior.

Didn't some old book say that there was a "time to restrain, a time to defer, and a time to engage."

Anyway, take care
gabe

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gabe
on August 08, 2017 at 14:20:48 pm

I think I started the movement - Ha!!!!!

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gabe
on August 08, 2017 at 14:26:19 pm

Yes indeed, and if it's the book I'm thinking of it almost certainly meant for those things to be done in a way that is forthright, principled, and consistent -- as opposed to opportunistic, disingenuous, and dissembling.

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Clark Neily
on August 08, 2017 at 18:15:25 pm

Gabe:

SLlGHTLY pudgy? You are being too kind.

Back story: The First Church of Shatnerology, http://www.shatnerology.com/, was a spoof of the Church of $cientology. And, l might also add, it is the Church of SHATNERology, not KlRKology. Worshiping a fictional character someone simply invented would be weird.

The site is dated (from the mid-90s), but Shatner was a good sport: "Don't let the flattering name fool you. This thing roasts me, skewers me, and teases me without mercy every single day of the year. It's also really funny, and incredibly well put together." William Shatner, Get A Life, 232.

lt absolutely WOULD be permissible to ban gay marriage--and even choose an official religion. The most florid example is the constitution of lran, which designates Shari'a as their iteration of natural law. But for good or ill, our forefathers created a document which is exceedingly difficult--some would say, TOO difficult!--to change, and which offers zealous protection for individual rights from the tyranny of the majority.

COTUS is a treaty, and a treaty is a contract. Pacta sunt servanda. For us, it is an adhesion contract. But l don't know what predicate you would need, apart from the existence of parties with contractual capacity. That was why l referred to DeFoe. A society of one is an island unto itself; by definition, "do what thou wilt" is the whole of the law. But if you add a second person, some sort of accord must be reached.

l use a nom de guerre because when l used my real name, l had been threatened with physical harm, and even had my house broken into when some yahoo tried to find me and traced me to Fiji (l wasn't there; he wasn't too competent), but l revealed sub silentio that l was not at home. And if it is good enough for Ben 'Silence Dogood' Franklin, it is also good enough for me; Logic 101 dictates that arguments do not depend on the person making them.

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LawDog
on August 08, 2017 at 18:39:45 pm

Gabe, l've been advocating this since law school. To me, it is an essential step in getting money out of politics.

The quickest way to end the gerrymander and inter our system of legalized bribery is to take the advice of George Washington, and limit the size of congressional districts to 30,000 residents. We have the technology to permit telecommuting by reps, and get them to hold periodic votes in Chicago, Denver, or Atlanta, instead of exposing them to an endless stream of industry lobbyists. Most could literally walk their own districts, and could run campaigns out of petty cash. The idea originated with Solon of Athens: even David Koch or George Soros couldn't bribe them all. [Note: No constitutional amendment would be required!]

While we would have to raise the number of Senators to 250 to mitigate the grotesque inequity of having an Alaska or Wyoming have nearly 100x the proportionate clout of California (no one in the large states would go for it without a sweetener), the notion of having Senators chosen by state legislators again would obviate the need for $100M war chests. Some states could still choose to elect their Senators, as the original system became so rife with abuse that the people thought that change was necessary. Better to leave that choice to the States.

We can't fix the circus that is our presidential election process, but having 10,000 electors would probably have spared us the indignity of enduring the grossly incompetent malignant narcissist we have in the White House. Regardless of your political leanings, this gang of bumblers should cause everyone insomnia.

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LawDog
on August 08, 2017 at 20:43:37 pm

Last sentence - AGREE wholeheartedly.

I. too, prefer sub silentio - but for my own reasons.

seeya, Dawg!

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gabe
on August 08, 2017 at 23:18:20 pm

There is a time for "conservative" judicial activism -- when so many laws, executive orders, and and administrative agency regulations violate the plain meaning of the constitution. It is necessary to enforce not only the Fourteenth Amendment, but the Fifth Amendment, a more faithful reading of the Commerce Clause, the Taxing and Spending Clause, and others.

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Juan Manuel Pérez Porrúa Pérez
on August 08, 2017 at 23:31:42 pm

I don't dispute the unenumerated right to contract. I dispute that a contract has any meaning for third parties that are not parties to the contract. Just because you call yourselves married doesn't mean others need to agree with your definition of that word.

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Devin Watkins
on August 09, 2017 at 07:03:35 am

For The Record:

Paul Binotto does not have a dispute with those who find it wise or expedient, for whatever reason, to pen opinion under nom de plume, nom de guerre, or nom de chien. He has not dispute with Silence Dogood,, Publius, or LawDog. and certainly not his beloved Mr. Gabe.

Indeed, he himself finds it expedient, in some forum, to pen in this manner, but not here - Paul is Paul.

In addition, Paul Binotto, does not dispute Logic 101 dictates that arguments do not depend on the person making them. Nor does he dispute the right of anyone to offer argument, from the rising of the sun, to its setting, across the grand political horizon.

But, civil society, first and foremost relies on civility if there is to be any hope of civil discourse. And, this applies to the Grand Republic of Blogosphere, as much or more so than any other. Incivility in civil discourse too frequently becomes a club wielded by the uncivil to silence opposing views, not because the view has no merit, but because the view is meritless in the mind of the wielder. Before long, what began as a civil exchange and debate of opposing ideas has become reduced to Dog and Pony Show.

It only seems, that nom de plume often serves to un-inhibit that which operates within humans to make them civil.

Since I am not laying down Constitution here, I feel safe in offering Biblical reference. One of my favorite Biblical passages, attributed to Sirach or Ecclesiasticus, is (paraphrasing), "A man's heart can tell him his position better than seven watchmen in a lofty tower". This seems a good rule-of-thumb for the public square. After all, this isn't some contemporary university, but instead a site dedicated to the free and open exchange of lofty ideas; no matter their point of entry.

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Paul Binotto
on August 09, 2017 at 08:07:30 am

Enforcing the Constitution is NOT "judicial activism" -- of any stripe. It's activity. Specifically, it's the activity of judges discharging their duty to enforce constitutional limits on government power. It is impossible to overstate how inapt and counterproductive it is to refer to that activity as "activism." The concept (though admittedly no the application) is incredibly simple: However ACTIVE the other branches are in violating the Constitution, that's how ACTIVE judges should be in enforcing it. No more, not less. That's not "activism," it's separation of powers.

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Clark Neily
on August 09, 2017 at 11:47:38 am

Devin: "I dispute that a contract has any meaning for third parties that are not parties to the contract. Just because you call yourselves married doesn’t mean others need to agree with your definition of that word."

You can hate gays, blacks, and lrishmen with every fiber of your being in the privacy of your own home. No law or government can take that away from you. But pursuant to federal and state commerce clauses, the government can lawfully require you to rent your motel room to blacks, sell groceries to Catholics, and treat a SS partner as next-of-kin in your hospital.

Consider the alternative. What if Kroger only served Protestants and Safeway, only Catholics?

l would commend Justice Scalia's opinion in Employment Division v. Smith for your perusal. We can't allow a religious veto to override laws of general application, as it would invite anarchy.

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LawDog
on August 09, 2017 at 16:03:34 pm

Dawg:

One thing folks should remember is that prior to the adoption of the 17th, many States had on their own "effectively" provided for *direct* election of Senators. Why, one may ask?
Well, it appears that divided State Houses quite often were unable to *elect* a US Senator. Some time back, I did a quick search and found that at it's worst, approximately 10% of Senate seats were not filled or had a "temporary" appointee.

As for the malignant narcissist - isn't he simply following in his predecessor's path.
A pox on both their personalities!

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gabe
on August 09, 2017 at 16:07:11 pm

Agreed!

Especially if "duty" is seen in terms of Hambergerian *duty* (another of my favorite thinkers).

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gabe
on August 09, 2017 at 16:24:45 pm

I reject that for most businesses government has the power to say who a business must serve. The business owners have property rights and the right to refuse to enter into contracts with others. The one exception for this are common carriers which can be required to serve all comers (primary because of monopoly problems inherent in such businesses). So businesses like public airlines, railroads, bus lines, taxicab companies, phone companies, trucking companies, and also innkeepers, can be required to serve all customers. Beyond these limited categories of common carriers, all business should be able to decline service for any reason, or no reason at all. Freedom necessary includes the right to do things that others think are wrong or unpopular as long as they don’t harm others. I support the right of Nazis to proclaim their hateful ideology as a requirement to have freedom of speech, likewise most businesses should be able to refuse to enter into a contract for any reason (or no reason). Sometimes businesses will do things like discriminate against minorities that I think is reprehensibly wrong as spouting Nazi ideology, but allowing people to do things that I think are wrong is inherent in having freedom.

Jim Crow existed because it was imposed by state governments, over the objection of local businesses, and that is constitutionally prohibited. Maybe that part of the Civil Rights Act was an appropriate remedy for that constitutional wrong, but that doesn’t mean it should still apply today when Jim Crow is dead.

If Kroger served only Protestants or Safeway only Catholics, then I wouldn’t buy from them (even if I was protestant or catholic), that is how people should act in a free society. You can do whatever you want with your business (that doesn’t cause harm to others), and I can refuse to do business with you if I don’t like the way you run your business.
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Employment Division v. Smith (1990) was wrongly decided overturning Sherbert v. Verner (1963), leading to the Religious Freedom Restoration Act being passed unanimously in the House and 97-3 in the Senate to try to restore the First Amendment back to what it had always been understood to mean. We have a long history of allowing religious minorities exemptions from generally applicable laws, for instance James Madison pardoned quakers who refused military service. During prohibition wine was still allowed for communion. “No provision in our constitution ought to be dearer to man, than that which protects the rights of conscience against the enterprizes of the civil authority.” –Thomas Jefferson https://founders.archives.gov/documents/Jefferson/99-01-02-9714. In 1775, the Continental Congress wrote:

“As there are some people, who, from religious principles, cannot bear arms in any case, the Congress intended no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently with their religious principles.” https://books.google.com/books?id=pndUAAAAYAAJ&pg=PA119&lpg=PA119

Pennsylvania, Delaware, New Hampshire, Vermont, and New York went so far as to explicitly grant such exemptions from generally applicable laws in their state constitution.

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Devin Watkins
on August 09, 2017 at 16:46:59 pm

"malignant narcissist" - I would think, with the exception of George Washington & Abraham Lincoln, (and maybe one or two others), this strain of Pox has likely run through all of the U.S. Presidents, leading one to almost conclude that the Office may in fact, be hereditary, after all...

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Paul Binotto
on August 09, 2017 at 17:19:20 pm

And here, l thought Paul had promised to ignore me. But if l must....

Let's define terms: A "bigot" is "a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (such as a racial or ethnic group) with hatred and intolerance." [M/W]

To be sardonically dismissive of an irrational appeal to authority (e.g., "the Bible said it, l believe it, and that settles it") is not "bigotry" per se. lt is not a slap at all Christians, as relatively few believers would embrace the notion or advocate a theocratic society. l did, however, take a direct swipe at the facially absurd notion that the Bible would control how we are to interpret the Constitution. But as Paul objects to my shorthand, let's do the long-hand.

That is not to say that the Bible is an intellectual dung-heap. Much timeless wisdom can be gleaned from its pages, as is the case with Aristotle and the Analects. But its system of sexual morality, while superbly adapted to a society where the primary challenge is to maintain a stable population in the face of war, pestilence, and disease, doesn't translate all that well to our lives today. For instance, there is no medical reason why you can't have sex during menstruation. And while a ban on premarital sex made sense in a society where girls were betrothed at seven, in a modern society where the average age of a first marriage is around 30, the notion is facially ludicrous.

Okay, so the Bible says that homosexual sex is a sin. lt also disapproves of our eating carnitas and jumbo shrimp, and YHWH "hates" divorce. Mal. 2:16. Well, at least it did until "God" suddenly changed his mind. lt's a little like how the Mormons' Heavenly Father changed his mind about polygamy and blacks in the priesthood. But fear not: the god of the Bible is a big fan of rape (Lot offered his virgin daughter to the mob, and was deemed a "righteous" man) and genocide (Jericho) and punishment of the innocent (the Passover). And he covets silver and gold (Joshua 6:19)?!?

lt wasn't the Jews' fault. YHWH was like all the other "gods" of the day: bloodthirsty, capricious, unjust, and insatiably selfish. The virgin birth fable (by no means presaged in the OT!) was borrowed from the Persians (and propagated by an unfortunate translation error). lf someone suggested that Odin's decrees were to govern society, we would all let out a collective snicker. Why we should listen to one group's ancient tribal sky-daddy and not another's is not at all clear on its face.

lf either Jesus or YHWH were here, they could give us their own opinions straightaway--and the mere fact of the actual appearance would be sufficient to certify them as expert witnesses. But sadly, they are either too busy playing canasta or just being dead to offer them. All we have is a book--an orgy of simple hearsay. We don't even know who wrote these four hopelessly contradictory tales, no way of vetting Jesus as an expert, and reasonable assurance that they conveyed Jesus's teachings with a semblance of accuracy.

At the end of the day, we have no reason to believe that anyone is competent to speak for Jesus, and even less reason to believe that he would have anything of value to offer. But in a forum where brevity is next to godliness, a curt sentence often trumps a dissertation.

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LawDog
on August 09, 2017 at 17:37:54 pm

"t the end of the day, we have no reason to believe that anyone is competent to speak for Jesus, and even less reason to believe that he would have anything of value to offer. But in a forum where brevity is next to godliness, a curt sentence often trumps a dissertation."

Three assertions:

1) Yep, who would be competent to speak for him?
2) Not so fast, Dawg! I think it fair to say that the "Biblical" Jesus would (should) have something of value to say - even IF the Gospels were written by some unknown scribe. Indeed, many on the Left cite his teachings - but I will offer only one of my own. If being a Christian means anything, it means having the capacity (ability may be a little too rare) to engender in others the capacity to love. Is this not of value? Is there no worth in this? All this aside from some basic tenets essential to not only ancient pestilence / disease / war ravaged societies.
No, All too often, folks hostile to religion select some of the more outdated social / cultural prescriptions of the particular sect and then adduce that the entire body of belief / practice is equally archaic. Not unlike what many do with COTUS. BTW: One can exhibit "christian" tendencies w/o being a Christian. This, however, does not mean that Christian teachings ought to be dismissed or abrogated.

3) Yep, brevity is next to "cleanliness" - oops, I mean "godliness."

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gabe
on August 09, 2017 at 17:44:20 pm

You flatter yourself - my response was not to you, but to Gabe, but for an accident or failure of technology(maybe the hand of Devine intervention, but you're not the sort to believe in such fairy-dust nonsense, no need to tell me, I get it, your above all that); you would make a great candidate for President; you seem to possess that particular strain of pox.

Now, please, if we are to co-exist here, lets do so peaceably, or do you intend to pester me all the way to Fiji and back?

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Paul Binotto
on August 11, 2017 at 12:38:03 pm

gabe: "I think it fair to say that the “Biblical” Jesus would (should) have something of value to say – even IF the Gospels were written by some unknown scribe."

Think of this like a lawyer, as opposed to a believer. Or in the alternative, consider the wisdom of C.S. Lewis: "Believing things on authority only means believing them because you have been told them by someone you think trustworthy."

For an appeal to authority to have weight, you have to show that your witness is an actual authority. For all the hypothetical "court" knows, the Jesus of the Gospels is no more intrinsically credible than SNL's Drunken Uncle --until you establish otherwise. And if Jesus didn't rise from the dead in the literal sense, his opinion carries no more weight than yours or mine.

To have us entertain his thoughts regarding SSM, you have to establish that (1) he actually rose from the dead; (2) that he actually weighed in on the question of SSM, and (3) that the alleged scribal transcription is accurate. The Gospels contain an array of irreconcilable contradictions--they couldn't even agree on what the Endeka did after the Crucifixion (Matt/John: they went back to their day jobs in Galilee; in Luke/Acts, they remained in the environs of Jerusalem and set up a commune). They quite obviously made a lot of their accounts up--and failed to compare notes. Rule of Susan/Law of Non-Contradiction. So, how CAN we conclude that they are veracious?

lt's not about being hostile to religion (modern lslam: YMMV). The Wiccan Rede, Hillel's exposition of the Torah, and the Golden Rule say essentially the same thing (hinayama Buddhists literally don't care). The god of the Bible was as vicious and malicious as he was capricious, but even if we decided to accept Jesus's core teaching (Matt. 7:12), the better argument is that we should permit SSM. But whenever a court takes Biblical aphorisms and other wisdom into account (e.g., the "Rule of Susan"), it is because they carry intrinsic merit. So, how does this play out in a courtroom?

You: "The Bible says...."
Me: "Objection, hearsay!"
The Court: "Sustained!"

Why shouldn't the same rigorous logical process be used outside the courtroom?

The word "religion" comes from an ltalian word meaning "to bind back." lf you choose to be bound by religious dogma, then Tiamat love ya! But don't demand that the rest of us be similarly bound (remember Sunday "blue laws"?). After all, isn't that the gravamen of Matthew 7:12?

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LawDog
on August 12, 2017 at 03:08:41 am

What is wrong with just reading the constitution ?

We need not argue about unenumerated rights so long as we accept that the constitution enumerates the powers of govenrment and what it does not grant government is outside the scope of government.

Further the Constitutions contracts clause might have enough wiggle room to claim that economic rights are not limitless, but it makes clear that they exist.

When congress passes a law we are supposed to try to interpret that law such that all the clauses of the law have effect. Why do we not do the same with the constitution ?

Why do we like to pretend that many of the clauses and amendments limiting government are meaningless.

With respect to the choice in that article - the decisions was made erroneously.
What powers were not delegated to government, belong to the people.
It does not matter whether we are talking economic of social issues.

Limited government - actually means limited government.
All powers excercised by government come at the expense of someone's liberty.

If we give government a power - we had better grasp that we are buying it with our liberty.

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jbsay

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