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Root Digs a Deeper Hole: The Equal Protection of Economic Privileges and Immunities

Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court (see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.

Root’s basic argument is that the Fourteenth Amendment’s Privileges or Immunities Clause, like the Comity Clause of Article IV, protects unenumerated economic rights. The only difference is that the Privileges or Immunities Clause transforms the equally protected state-secured rights of the Comity Clause into absolute substantive rights. Thus, the Supreme Court wrongly rejected unenumerated substantive economic rights in The Slaughterhouse Cases (1873) and in later New Deal decisions like Carolene Products (1938).

In my review, I pointed to a large body of historical evidence suggesting that Root is wrong about the original understanding of the Privileges or Immunities Clause. The Clause refers to the rights of citizens of the United States, not the rights of citizens in the several states as it says in the Comity Clause. Where the latter refers to state-secured rights, the former refers to constitutionally enumerated rights.  The man who drafted the Privileges or Immunities Clause expressly distinguished his handiwork from the Comity Clause and insisted that his efforts were aimed at requiring the states to respect the enumerated rights of the federal Constitution, especially those listed in the Bill of Rights. As a matter of original meaning, the treaty-based language Representative John Bingham (R-OH) chose had long been understood as pointing to federally enumerated rights.

Moderate Republicans like Bingham would not have supported, much less offered, an amendment authorizing national control of the substance of civil rights in the states (economic or otherwise). Instead, taking a middle position between Radical and conservative Republicans, moderates embraced a clause that required the states to respect the constitutionally enumerated privileges or immunities of American citizens.  This left the substance of all unenumerated subjects under the control of the people in the states, subject only to the requirements of due process and equal protection.

“Nonsense,” Root responds.  Of course the Fourteenth Amendment protects unenumerated substantive economic rights. After all, the same Congress that passed the Fourteenth Amendment also passed the Civil Rights Act of 1866. Generally viewed as a precursor to the Fourteenth Amendment, the Civil Rights Act required states to equally enforce state laws relating to property and contract. Moreover, Republicans like John Bingham often spoke about the need to protect freedmen from discriminatory labor and economic laws. Therefore, it is absurd for Lash to claim “that state and local officials . . . should be free to control economic affairs as they see fit, free from any pesky interference from federal judges seeking to thrust constitutional limits upon them.”

That would indeed be an absurd claim. Thankfully, I did not make it. The issue is not whether the Civil Rights Act and the Fourteenth Amendment protect unenumerated economic rights. The issue is how these provisions protect unenumerated economic rights. Once we focus on that matter, Root’s objections dissolve like tissue paper in the rain.

Republicans, for example, could have authorized the federal government (whether Congress or the federal courts) to control the substance of local economic freedom. This was the initial choice of the Radical Republicans. A different approach would allow local majorities to control the substance of local economic regulation, but require the equal enforcement of those laws, regardless of race. The latter was the approach of the moderates, and they carried the day.

In his response, Root ignores the difference between substantive rights and equal protection. For example, although he quotes some of the Civil Rights Act of 1866, he leaves out the most important part. He quotes the Act’s declaration that citizens have the same right “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.” But Root omits the final part of the sentence “. . . as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.”

This is a guarantee of equal protection, not substantive right. The Civil Rights Act granted citizens the same state-secured property and contract rights “as is enjoyed by white citizens.” Far from controlling the substance of state economic regulation, the Act left in place all state-imposed non-discriminatory “punishments, pains and penalties” on matters relating to labor, contract, and property. Here, for example, is Trumbull defending the final language of the Civil Rights Act:

“The bill neither confers nor abridges the rights of anyone, but simply declares that in civil rights there shall be an equality among all classes of citizens, and that all alike shall be subject to the same punishment.”

So yes, economic rights were protected—equally. But, no, they were not protected absolutely in the manner proposed by Root and the libertarians.

Despite Root’s studied indifference to the fact, moderate Republicans successfully demanded the removal of the term “civil rights” from the Civil Rights Act. Moderates insisted the Act’s language be changed in order to avoid precisely the kind of assumed national authority over civil rights that Root and the libertarians now try to read into the Act and the Fourteenth Amendment. The change ensured that the text pointed directly, and solely, at the problem of discrimination. This not only highlights their central purpose, it shows how careful moderates were to avoid language they understood to have open-ended meaning.

Like other moderate Republicans, John Bingham believed that all persons should enjoy the natural right of equal protection of the laws—including equal protection of local economic law.  However, Bingham refused to support the Civil Rights Act because: 1) he believed Congress needed an amendment granting them power to pass such an act, and 2) he believed that all persons should enjoy the equal protection of the law, not just citizens. Bingham’s final draft of the Fourteenth Amendment fixed both problems by including an equal protection clause that protected all persons.

In short, Root is right to say that unenumerated economic rights are protected by the Civil Rights Act and the Fourteenth Amendment. I never claimed otherwise. Root is wrong, however, about how Congress chose to protect economic liberty. Neither the Act nor the Amendment requires states to protect substantive unenumerated economic rights. Instead, the Act and the Equal Protection Clause require nothing more than non-discriminatory local economic policy.

Which brings us (back) to the Privileges or Immunities Clause. As I explained in my review, Root believes that the Privileges or Immunities Clause is actually based on the Comity Clause, and that the Comity Clause was properly interpreted by Justice Bushrod Washington in the antebellum case Corfield v. Coryell (1823). Because Corfield read the Comity Clause as protecting unenumerated “fundamental” rights, Root insists that we should read the Fourteenth Amendment’s Privileges or Immunities Clause as also protecting unenumerated substantive economic rights.

Root is not wrong, he’s just confused.  As Justice Washington explained in Corfield, the Comity Clause of Article IV required states to grant visiting citizens equal access to a limited set of state-secured rights. Visiting citizens could not expect equal treatment on all matters, only those so “fundamental” that denying visitors equal access would unduly strain the bonds of friendship between the states. According to Corfield, the Comity Clause does not protect substantive unenumerated economic rights. It merely provides the right of equal protection for a limited set of local privileges and immunities.

As a constitutionally enumerated right, the Comity Clause stands as one of the Privileges or Immunities of citizens of the United States protected against state abridgment by the Fourteenth Amendment. Therefore, it is not surprising that Senator Jacob Howard (R-MI) included the Comity Clause in his description of Fourteenth Amendment “Privileges or Immunities.” This was one of many constitutionally enumerated rights now protected against state abridgment and subject to Congress’ new enforcement powers.

In other words, if it is an enumerated right, it is one of the privileges or immunities of citizens of the United States. The proposal was as simple as it was profound.

Libertarians, however, resist this simple proposition. They insist that the equally protected subjects of the Comity Clause somehow became transformed into absolute economic rights with the adoption of the Fourteenth Amendment. There is not a shred of evidence that this “transformation occurred” and Root presents none in his response (or in his book).

So Root is right to insist that the Fourteenth Amendment protects unenumerated economic rights. He’s just wrong about how it does so, and his error is fatal to the entire libertarian project.  Unenumerated economic rights are not substantive national privileges or immunities. Determining the substance of unenumerated rights is left to the people in the states as part of the people’s retained right to local self-government.

But what about the Due Process Clause? Even if libertarians are wrong about the Privileges or Immunities Clause, perhaps the Supreme Court was right to develop the doctrine of substantive due process. This is the proposition of Evan Bernick, whose recent essay at the Huffington Post also takes issue with my review of Root’s book.

My review did not address the Due Process Clause because not even Damon Root had the courage to try and resuscitate this broadly mocked doctrine. That Mr. Bernick now tries to do so provides a telling illustration of the failure of libertarian constitutionalism.

For decades, libertarians have insisted that the Supreme Court has wrongly relied on the Due Process Clause and should instead turn its attention to the Privileges or Immunities Clause. The culmination of this effort was Alan Gura’s failed attempt in 2010 to convince the Court to embrace a libertarian reading of the Privileges or Immunities Clause in McDonald v. Chicago.

Perhaps now, in the face of overwhelming evidence that the Privileges or Immunities Clause does not say what they want it to say, libertarians will embrace their inner Emily Litella, say “never mind,” and quietly return to Substantive Due Process.

Perhaps that would be best. They will find no solace in the original meaning of the Privileges or Immunities Clause.

Reader Discussion

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on July 15, 2015 at 13:17:22 pm

First Question: You claim that the comity clause "privileges and immunities of citizens in the several states" protects state "secured rights", but the 14th amendment ("the privileges or immunities of citizens of the United States") protects "constitutionally enumerated rights." What is it about the langauge that leads you to this conclusion? I understand the second half of the rights as citizens "in the several states" vs "of the United States" suggests a national/U.S. federal government vs what had previously been associated with the rights protected at the state level. My question is about where the "rights protected" vs "constitutionally enumerated" distinction comes from in the langauge as you interpret it.

Second Question: You claim that the 14th amendment "privileges or immunities" clause was "expressly distinguished" from the Comity Clause. I dont dispute that the federal constitutionally enumerated rights are included in the 14th amendment P or I clause, but this disagrement isnt on those questions, but on unenumerated rights. So my question to you is why did John Bingham in the House Judiciary report expressly say that:

"The clause of the Fourteenth Amendment, 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two." [That would be the so Privileges and Immunities" clause] Cong. Globe, 41st, 3rd Sess., H.R. Report 22 (1871) http://www.federalistblog.us/h-r-report-no-22-bingham/

Doesn't this state that the rights protected by the "Privileges and Immunities" clause are exactly the rights that the 14th amendment "Privileges or Immunities" clause amendment protects? (in addition to federal constitutionally enumerated rights)

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Devin Watkins
on July 15, 2015 at 16:08:22 pm

In response to the second question, it is possible that John Bingham was referring to the fact that both the comity clause and the privileges and immunities clause were meant to protect natural privileges secured by positive law. Thus, when a State secured a natural privilege to its own citizens by positive law, it could not deny that privilege to the citizens of sister states. Similarly, under the 14th amendment, if the federal constitution or other Congressional positive law secured a natural right to American citizens, the States could not deny that same privilege to federal citizens. This would also answer the first question. The fact that the 14th amendment does not specifically mention that the bill of rights is incorporated is irrelevant if you understand protections run only against rights secured by positive law.

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Jimmy C
on July 16, 2015 at 09:38:54 am

'@Jimmy C

That would be an interesting interpretation of the clause that I had not heard before. Limited to natural rights secured by positive law, but allowing that to be secured by congress or he constitution. Most people say either (1) (on the left) say that congress can define any right (positive or natural) and have that apply (rare interpretation), (2) the clause is almost meaningless, or (3) it protects constitutionally protected rights. Kurt Lash and I tend to fall in the 3rd, but we disagree about if unenumerated rights are protected. One problem with your idea is that would mean constitutionally protected positive rights (not natural rights), like say the right to a jury trial would not be protected. Also both Kurt Lash and I's interpretations are very weary about having congress decide the questions of what rights are protected (I would prefer the interpretation that courts decide enumerated and unenumerated natural rights, and kurt lash wants to limit it to only courts protecting enumerated rights). Your proposed interpretation would give a lot more power potentially to congress to define which rights are protected (not something that I think the drafters of the 14th amendment really wanted, at least most of them). It also doesn't answer the broader question of if unenumerated rights are already protected.

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Devin Watkins
on July 16, 2015 at 11:20:03 am

[…] economic rights are protected by the Civil Rights Act and the Fourteenth Amendment," Lash now says. "Root is wrong, however, about how Congress chose to protect economic liberty. Neither the Act nor […]

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Why the 14th Amendment Protects Economic Liberty - Hit & Run : Reason.com
on July 16, 2015 at 12:42:31 pm

The disagreement in some ways is over the meaning of word immunities, and I just saw this relevant definition by Blackstone: "Thus much for the declaration of our rights and liberties. The rights themselves thus defined by [Magna Carta and the other discussed] statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man’s natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense." 1 William Blackstone, Commentaries on the Laws of England *125 (W.S. Hein & Co. 1992) (1766).

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Devin Watkins
on July 16, 2015 at 16:17:31 pm

Devin:

Thanks for the Blackstone quote - nice perspective.

Help me with something:

Using the Blackstone quote, then, "It also doesn’t answer the broader question of if unenumerated rights are already protected" remains unanswered", to your thinking, yes?, as only some of these flow from the basic *rights* discussed by Blackstone. Or am I once again making a mess of it?

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gabe
on July 16, 2015 at 16:29:08 pm

Devin, one clarification. The Constitution is not "natural law," it is positive law and part of the "law of the land," so naturally, the rights secured by the constitution are enforceable against the States under my interpretation of the clause. By positive law, I mean the law of the land, not legislation.

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Jimmy C
on July 16, 2015 at 16:56:00 pm

Nice quote Devin. I agree that Blackstone's definition of immunities is highly probative of the meaning of the clause at issue. You should also notice that Blackstone was a positivist who thought that people gave up their natural rights when entering into civilized society in exchange for positive rights protected by law and the "artificial reasoning" of common law judges.

Also, I should clarify that my interpretation completely answers your question as to whether unenumerated rights are protected. The answer is no. Your right to a trial by jury as a citizen, however, is arguably a privilege of American citizenship secured by the law of the land, and is therefore applicable to the States under this interpretation of the clause. This is debatable, but given that the privilige is protected by positive law and as old as Magna Carta, I think it should be applicable against the States, in both civil and criminal contexts.

Given the ambiguous historical record, part of our disagreement stems from a normative disagreement about how comfortable we feel about structural protections and democracy as compared to rights-oriented jurisprudence. I see the rights oriented court of the past 80+ years as using unnemurated rights to usurp the prerogatives of the legislatures of the several States in a very atextual and postmodernist way. You I am sure, see it with different eyes. Given my normative framework, I will tend to prefer an interpretation that confines law to its ordinary constitutional process and does not vest in the Supreme Court practically unchecked authority to decide what unenumerated rights to protect.

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Jimmy C
on July 16, 2015 at 17:31:07 pm

Blackstone quote is talking about the law in England (not the US), the quote is just to establish the meaning and application of the word "immunities" used in the P&I clause and the P or I clause was explicitly meant to speak to the natural rights (in opposition to the positive rights under the "privileges" part of the clauses).

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Devin Watkins
on July 16, 2015 at 17:36:50 pm

".. I will tend to prefer an interpretation that confines law to its ordinary constitutional process and does not vest in the Supreme Court practically unchecked authority to decide what unenumerated rights to protect."

You hit it right on the head.

I would add only this: after "protect", change to: "..protect OR create." It may be proper to also caution against the creation of rights that is rather fashionable at this time. One of the concerns that I have is that with some of the interpretations of the P&I Clause, and its applicability / extent of Judicial purview is that we end up with an instrument by which, and through which, the Courts may (and have) seen fit to expand and *bestow" an ever growing cornucopia of positive rights over and against the express desires of the people and tradition. All too often this is the end result of a certain type of libertarian jurisprudence.

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gabe
on July 16, 2015 at 21:53:51 pm

If it were just the ability of Judges to protect ANY right that they thought should be protected, then I would agree, that would invest the Court with "practically unchecked authority." But a limitation to natural rights is different. The recognition of the protection of a natural right expresses a limitation on the power of government. The protection on the natural right to freedom of speech is an example where it says that governmental power in this area is limited. Natural rights starts with the foundation that you can do any act that does not harm (or threaten harm of) another person. Think of this as a kind of government's standing issues, how has government or any other person in society been harmed by this act of the individual? The only other potential natural right might be self-defense (a reasonable and proportionate use of force in the protection of your other natural rights).

There are three potential problems with judges trying to protect natural rights, either (1) they know that it isn't a natural right and don't agree with the limitation to natural rights (there is nothing in any interpretation of the constitution that can ever solve this problem, there will always be "bad" judges), or (2) they are failing to recognizing a right despite the fact that it should be recognized as it is a natural right (this is hardly a worse situation then refusing to recognize any natural right that should be recognized); or

(3) the court is recognizing a right despite the fact that the act that they claim is a "natural right" is actually causing harm to others. This is really the core of the abortion objection, the court refuses to recognize the potential harm to the baby as a reason for the state to limit the freedom of the mother. I cant say this will never occur in another area, but think of what will usually happen if this was about an adult that was harmed but government had not passed a law making it illegal. They would sue (under battery or some other tort), and then the question of standing would arise, and the court would ask "were you actually harmed?" or in other words did you have "Injury-in-fact"? Again this exact question of if a person has a natural right would again be before the court. The court knows how to make these kinds of judgments, it does it every day. If no one was harmed or threatened with harm, and yet the government still wants to punish the person, how can that be described as anything but arbitrary? Why that person? Just because a majority doesn't like them or their actions? In a free society that should never be good enough. "We lay it down as a fundamental, that laws, to be just, must give a reciprocation of right; that, without this, they are mere arbitrary rules of conduct, founded in force, and not in conscience." -Thomas Jefferson

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Devin Watkins
on July 17, 2015 at 03:02:01 am

[…] economic rights are protected by the Civil Rights Act and the Fourteenth Amendment,” Lash now says. “Root is wrong, however, about how Congress chose to protect economic liberty. Neither the […]

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Why the 14th Amendment Protects Economic Liberty | Michigan Standard
on July 17, 2015 at 10:48:43 am

The harm principle sounds when libertarians have too many beers and they start complaining about occupational licensing, but it does not strike me as a particularly robust way to organize the institutions of a constitutional republic. There is little agreement on what counts as a harm. Take for example, Coase's example of the farmer and the cattle rancher. Say the cattle trespass onto the farmer's land. I assume that you would say that the cattle rancher is "harming" the farmer. But you could equally say that the farmer is harming the cattle rancher by not allowing the cattle to roam freely on his land, or by growing crops on his land. Or say, the typical tort example of the railroad that causes "harm" by setting off sparks that burn a farm. Did the railroad cause the harm, or was it the farmer by growing his crops to close to the railroad tracks? And so on. Whatever liability or property rule you impose one way or another will end up harming someone, somewhere, because resources are scarce, and since these rules are typically enforced by judges, they will be causing harm to one or the other party. Some situations are more complex. For example, does the harm principle justify Dodd Frank's Orderly Liquidation Authority? Big Banks are threatening a harm, are they not? I am just really not sure how to operationalize this kind of a system. So if we are going to organize a society based on academic ideas, I would start with something more sensible, like Pareto or Kaldor-Hicks efficiency.

Apart from the fact that the problem of deciding what counts as a harm, the other problem is, at what level of generality do you define "harm"? You can go quickly from a Stuart Mill kind of harm principle to a Hegelian Philosophy of the Spirit kind of harm in which groups suffer "harm" because they are locked in a struggle for recognition and dignity. Just read Kennedy this term. So the harm principle is not a very good limiting principle.

Since we live in a Constitutional Republic, I prefer a jurisprudence centered around the text, structure and original meaning of the Constitution and the law of the land, not natural philosophy.

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Jimmy C
on July 17, 2015 at 19:42:42 pm

The trespass on to land owned by another is clearly a harm (just as stealing an object owned by another is). As is sending sparks or fire onto land that you do not own. I don’t see what is so controversial about that. The legislature has always been able to set the “threashold” values of how much sound, light, smoke, etc. (or in this case sparks) that cannot be sent onto someone else’s property without causing harm (and the default falls back to judges’ understanding of reasonableness if the legislature doesn’t set it). Orderly Liquidation Authority is in many ways a special kind of bankruptcy (something that clearly is within the government’s power). I may think that there are far fewer cases of things causing “harm” then Kennedy does, but that isn’t the question, does the court hold that no person suffered (or could have suffered) any injury? Then the government should not be allowed to prohibit it. This thread started with a quote from the great jurist William Blackstone talking about the law in England, and we are talking about the meaning of the 14th Amendment and the 9th Amendment, this is Law not philosophy. Maybe you are trying to say that you disagree with the amendment as it was meant to mean at the time, that’s fine propose your own constitutional amendment to repeal or change it.

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Devin Watkins
on July 17, 2015 at 21:54:51 pm

A trespass is a legal convention, not an inherent or natural harm. If not, why do we tolerate a factory sending "pollution" into A's land when a judge thinks the pollution is reasonable, but we do not tolerate it at all when tangible ashes are physically invading B's land? Suppose the nuisance causes ten times more dollar losses on A than the ashes on B? Why does this make sense? (here is a clue, it doesn't necessarily)

Is the person not sending "pollution" onto A's land? Does the natural conception of harm really turn on whether the harm is a solid or a gas? Why is this "natural"?

The real question as I see it is whether the rules are efficient, not whether they follow a natural "harm" principle. You are right that all of this is not controversial: Practically all legal scholars agree that our idea of "harm" is really a way to resolve reciprocal disputes over the allocation of resources, not an inherent part of the human condition.

I agree that our legal dispute should be one of law, not philosophy, but you injected the harm principle into the constitution, and I cannot find that principle in the constitution, so I thought we were talking philosophy. You say that somehow it is part of the 9th or 14th amendment, or a penumbra from both, which I find utterly puzzling. The 9th amendment on its face is just a rule of construction. It says that judges should presume that positive law did not intend to take away ancient liberties unless it did so clearly. If you need a more detailed explanation of this obvious proposition, I recommend Michael McConnell's articles on the subject. Here is a good one to start with, in none other than the Cato Supreme Court review: file:///C:/Users/James/Downloads/SSRN-id1678203.pdf

As far as the 14th amendment goes, it does not protect the people against government action when government cannot show a "harm." It protects the privileges and immunities of citizens absolutely, against all abridgments, regardless of the compelling nature of the harm alleged. It is not a balancing act, but a categorical prohibition that applies regardless of the wisdom of government policy. The question then, is, does the law abridge a privilege or immunity? Not, has the government alleged a compelling harm justifying the abridgment of a privilege or immunity?

We can quibble over whether the clause applies only to federal privileges and immunities that are part of the law of the land or whether there is some natural or fundamental rights that are recognized apart from the positive law of the social compact, but to focus on actual harm is to miss the actual legal text and to confuse it with the Supreme Court's disastrous jurisprudence in the are of civil rights. Disastrous precisely because it has ignored text and structure and instead focuses on balancing harms and interests based on their personal beliefs in total disregard of sensible jurisprudence. Hence, why we have descended from the jurisprudence of John Marshall to the aphorism of the fortune cookie.

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Jimmy C
on July 18, 2015 at 06:55:32 am

The article by Michael McConnell’s is interesting. It agrees with most of everything I said, but says that such rights can by abrogated by explicit positive statutory law. So there are two questions, (1) what natural rights are protected?, and (2) what does it mean to "deny or disparage" them? I agree completely with everything he says about what those natural rights are that the constitution is referring to. I disagree about what he meant by the phrase "deny or disparage." If the constitutional text had ONLY said disparage, I think his reading would be ok, but it doesn't. Congress has no power to deny those rights as well.

The 14th amendment P or I clause protects all rights protected under the federal constitution against the states. This includes both natural and positive rights, enumerated and unenumerated rights. The harm principle that I was talking about is merely one part of the unenumerated natural rights of an individual protected by the 9th amendment. No one has a natural right to harm another individual in a state of nature. You are right, its not a balancing act. I don't include the harm principle to say "does the law do more good then bad," I say that if any harm at all is done by the act then it is within the power of government (at least at the state level) to prevent it. That law might be overbearing or harsh, but that does not violate your natural rights because you had no natural right to harm others. This is a bright line rule, not a balancing test.

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Devin Watkins
on July 18, 2015 at 11:24:50 am

Devin, the key is that the 9th amendment says "shall not be construed" to deny or disparage. The "shall not be construed" indicates that we are dealing with a rule of construction, not a substantive rule. What the founders meant by this was that just because they were entering into a federal social compact with a bill of rights, they did not mean to extinguish those other preexisting rights that existed in other social compacts (or in nature, in the absence of a social compact). The 9th amendment does not say nothing "shall deny or disparage." It says nothing shall be "construed" to deny or disparage any other rights. Why add the word construed if they intended the amendment to codify substantive rights?

Thus, Congress has the power to extinguish preexisting rights by clear positive legislation, harm or nor harm, were it can otherwise legislate. And judges have a duty to construe Congressional legislation not to deny or disparage the rights that exist by virtue of other social compacts, that is the social compacts of the people of the several States. Since no part of the United States remains in "a state of nature," there is not such thing as pure natural rights remaining on American soil. Only the rights that the people of the several states bargained for in their social compacts.

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Jimmy C
on July 18, 2015 at 16:22:01 pm

Oh, I understand that it is a rule of construction, but the question is “a rule of constructing what?” I would argue that it is a rule for constructing the powers of congress in the constitution. That although the constitution says that congress has the power to, for instance, “regulate commerce”, that power should be construed as to not include the power to violate a person’s natural rights. I just don’t see how your interpretation conforms with Madison’s description of the enumerated rights as just being added “for greater caution.” Your argument is that enumerated rights are fully protected by unenumerated rights only have a kind of clear statement rule, but then there is a clear and fundamental difference between enumerating the rights and not doing so, and you cannot just say that the rights that were enumerated “for greater caution.” The whole point of the amendment was the fear, as James Madison said, 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.” But your interpretation would do just that, to assign “into the hands of the General Government” and to be “consequently insecure” to any future congress that wishes to explicitly abolish them.

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Devin Watkins
on July 18, 2015 at 17:06:17 pm

Ok. I agree that the 9th amendment tells judges to construe Congressional powers so as to not invade natural rights. The difference I take it is that I think this means that they shall construe both the extent of the powers of Congress and their statutes with an eye to avoiding the denial of other rights secured by positive law elsewhere, or natural law, in uncivilized pre-contractarian societies that have not surrendered rights to a sovereign. I interpret the Bill of Rights preface: "in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added" as clarifying that the bill includes rules of construction and rules of substance, and I see the 9th amendment as clearly falling on the side of a declaratory rule of construction "in order to prevent misconstruction" of the constitution but not in order to restrict the powers of Congress. You on the other hand, read it as both a restrictive clause and a rule of construction. Fair enough. I think this is hard to square with social contract theory.

More to the point, I am not aware of anyone suggesting that the power of Congress was limited to situations in which it could show there was a "harm" or "evil" prior to the 1870s, and the principle is too vague an amorphous to guide judges, primarily because the possibility of "harm" is really just a spectrum of risk in most circumstances. For example, assuming Congress or a State legislature is acting within its powers, must it make a full blown risk assessment to identify possible risks of "harm"? May it interfere with the allocation of risk in labor contracts and set a workplace safety standard at a level that will save 10/1000 lives of every worker? Is that enough harm? Does it need clear and convincing evidence that at least one person will die due to the risk? Is the consent of the workers enough to vitiate the harm? Or suppose that a State wants to condemn land that is blighted. What is the spectrum of risk that a State must show? Must it show it will attract dangerous activities or catch fire with absolute certainty before taking property? May a legislature take property when it fears an Alien invasion? There is certainly a risk that this could occur. How much risk is enough to create a threatened harm in your view? The possibilities are infinite.

How about this, if you show me an opinion by Chief Justice Marshall or Joseph Story saying that Congress may not regulate a certain activity because it has not show a "harm," I will concede victory.

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Jimmy C
on July 18, 2015 at 18:03:59 pm

BTW, all you really need to know about why the 9th amendment was enacted is contained in Federalist 84. It seems to me that if the founders were going to depart from the law of the land and empower judges to decide cases according to "natural reason" as opposed the "artificial reason" of judges they would have expressed this more clearly. The incorporation of the law of equity in Article III was controversial enough, and I can't imagine the founders would have intended to break with English tradition and allow federal judges to decide cases according to natural law sub silentio.

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Jimmy C
on July 18, 2015 at 20:43:38 pm

The idea a person cannot have a natural right to harm another derives from the very foundation of natural law as expressed by Locke: "The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions." As you mentioned John Stuart Mill also said "That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."

Now as to if Chief Justice John Marshall or Justice Joseph Story believed this idea bound our government, let me show you an opinion of Chief Justice Marshall join by Justice Story Ogden v. Saunders, 25 U.S. 213, 345-46 (1827):

"[T]he proceedings respecting [contracts] of which we know any thing, evince the idea of a pre-existing intrinsic obligation which human law enforces. If, on tracing the right to contract, and the obligations created by contract, to their source, we find them to exist anterior to, and independent of society, we may reasonably conclude that those original and pre-existing principles are, like many other natural rights, brought with man into society; and, although they may be controlled, are not given by human legislation. In the rudest state of nature a man governs himself, and labours for his own purposes. That which he acquires is his own, at least while in his possession, and he may transfer it to another. This transfer passes his right to that other...

What is the effect of society upon these rights? When men unite together and form a government, do they surrender their right to contract, as well as their right to enforce the observance of contracts? For what purpose should they make this surrender? Government cannot exercise this power for individuals. It is better that they should exercise it for themselves. For what purpose, then, should the surrender be made? It can only be, that government may give it back again. As we have no evidence of the surrender, or of the restoration of the right; as this operation of surrender and restoration would be an idle and useless ceremony, the rational inference seems to be, that neither has ever been made; that individuals do not derive from government their right to contract, but bring that right with them into society; that obligation is not conferred on contracts by positive law, but is intrinsic, and is conferred by the act of the parties. This results from the right which every man retains to acquire property, to dispose of that property according to his own judgment, and to pledge himself for a future act. These rights are not given by society, but are brought into it."

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Devin Watkins
on July 18, 2015 at 23:58:44 pm

Although it is not Justice Marshall or Justice Story, here is another founder who held the same opinion, Thomas Jefferson: "No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him... When the laws have declared and enforced this, they have fulfilled thier functions, and the idea is quite unfounded, that on entering into society we have up any natural right." https://books.google.com/books?id=XJsEAAAAYAAJ&pg=RA1-PA278

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Devin Watkins
on July 19, 2015 at 02:27:02 am

In this passage Locke was describing his beliefs as to what natural or moral law consists of. Locke still believed that the preexisting rights of Englishmen could be taken away by positive law, or in the words of Magna Carta "by the judgment of his peers and the law of the land." That is the essence of social contracting. In the words of John Locke’s Second Treatise on Government, this kind of civil liberty includes “a Liberty to follow my own Will in all things, where the Rule prescribes it not.” The implication is clear. Natural liberty is the default rule, that can be overcome by the legislature. See also 1 WILLIAM BLACKSTONE, COMMENTARIES *130.

John Stuart Mill thankfully had no influence on the U.S. Constitution, born as he was in 1806.

Thomas Jefferson was a radical Francophile that liked to substitute rabble-rousing rhetoric for actual thought. Thankfully, he was with in France and did not exert significant influence over the drafting of the Constitution.

John Marshall and Justice Story are quoted out of context here, say nothing about "harm," and the discussion is pure dictum and irrelevant to the decision. The question presented was whether a debtor from Louisana who entered into a contract in New York with a citizen of Kentucky could raise as a defense a final judgment of insolvency under a New York law existing at the time of the contract. The discussion you quote out of context is really one of the general law, the common law that judges applied in commercial transactions. Story and Marshall believed that federal judges were not bound by state or "municipal" law in interstate cases involving citizens of the several states. Only Congress could control the obligation of these contracts. I accept Marshall idea that the general law is not the creation of the New York Legislature, but the result of the general law of merchants evidenced in the decisions of the common law judges in the several states. Story and Marshall lost the battle of exclusive power over interstate contracts, and that is why they are so bitter here. The fact that merchants were free to enter into contracts according to the preexisting common law was obvious, and although rhetorically interesting, has little to do with the actual opinion. In fact, the reason that judges always insisted that their opinions were only evidence of the law and not the "law" was because as fallible human judges deciding only particular cases, they were only able to use the artificial reasoning of judges, not the natural reason of a God. Some on First Street have forgotten that point.

In order for you to prevail, the dissent would have to say something like, here, New York has not shown that its insolvency law would prevent a harm, and therefore, we would hold it has violated the unenumerated or natural rights of this venerable foreign citizen. The actual opinion is over whether the contract clause and the commerce clause operate to exclude state bankruptcy laws out of interstate contracts all together, or whether the contract clause only applies to retroactive laws like debt relief and similar acts.

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Jimmy C
on July 19, 2015 at 12:13:48 pm

Ok, you don’t agree that Locke saw the powers of government limited by natural rights, try this quote: “[The legislature] is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being the joint power of every member of society given up to that person, or assembly, which is legislator; it can be no more then those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power then he has himself... and having in the state of nature no arbitrary power over the life, liberty, or possessions of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this... It is a power that hath no other end but preservation…” 2 John Locke, Two Treatises of Government 314 (Thomas Hollis ed., 1764) [1689].

I will concede that Blackstone believed in parliamentary supremacy above all natural law (I just don’t think that the founders agreed with complete legislative supremacy as expressed by Blackstone). Instead I believe the founders followed the opinion of Sir. Edward Coke which certainly did not believe in such legislative supremacy above natural law and reason.

I don’t think that Justice Marshal and Justice Story in a majority opinion held what you are looking for. (The opinion I cited clearly was not the holding of the court for the case as Marshal and Story were speaking in dissent, but I don’t think I took them out of context from their dissent). However I do think that Justice Chase speaking for a majority of the Court in 1798 did express natural law limits to legislative power, although speaking in terms of a state law and the ex post facto clause, the court also comments on the powers that “our Federal… legislature possess” in Calder v. Bull, 3 U.S. 386, 388-89 (1798):"There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established... A law that... impairs, the lawful private contracts of citizens... that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature... cannot... violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments." (I removed some of the parts about ex post facto, that are not disputed today, to shorten the quote, but I believe kept the meaning as to the parts quoted.)
While it is true, this is dicta (as the decision is about the state government’s legislative power), it was still a majority of the court in 1789.

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Devin Watkins
on July 19, 2015 at 12:28:31 pm

Sorry I meant 1798 at the end.

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Devin Watkins
on July 19, 2015 at 13:15:59 pm

You repeatedly cite people out of context, which only discredits your position further. First, Locke was trying to justify the Glorious Revolution. His thesis was the when the King transgressed the natural rights of English property owners, he put himself into the state of nature, and outside the law, which justified revolution against the King. Locke did not believe that during ordinary times the Kings Bench got to decide individuals cases according the natural law, whatever that might be.

Second, Coke repeatedly emphasized that judges decided cases according to artificial reason, not natural law. Although he was influential in promoting a certain Anglo-Saxon vision of the separation of powers, he certainly did not think that the legal reasoning of courts prevailed against contrary law enacted by parliament. He protested only when parliament sought to vest the King with powers to sport away the vested rights of particular individuals without the benefit of an independent judicial judgment, rendering him "above the law." If you want to selectively quote him on natural law, I will be happy to oblige by putting his words in context.

Third, you're quotation to Calder v. Bull is most helpful to me for several reasons, so thank you. First, you are wrong to say that that Chase spoke for a majority of the court. There is no majority opinion in Calder v. Bull, the decision is seriatim, as was the common practice before Marshall. The natural law burble is Chase's alone. The other Justices deliberately do not follow him and in fact hold against his judgment by upholding the judgment of the Rhode Island Assembly as not an ex post facto law. Chase's undisciplined opinion if anything should be read as a dissent. Third, your own citation to Chase makes my point and undermines yours. He says: "It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." The key here is presumed, exactly the presumption I was arguing several posts above the 9th amendment instructs courts to use. Not only are you wrong to think Chase thought judges could use natural law to decide cases, but this is far from an argument that Rhode Island had an affirmative duty to show "harm" before legislating.

Let me give you some context to explain what Chase actually thought he was arguing for. This was a case in which the members of the Rhode Island Assembly, following the common practice of the State, sat as the supreme judicial body of the State (much like the Lords in England) to decide a probate matter. At the heart of the dispute is the American concept of the separation of powers, and their belief that legislatures should not exercise judicial functions. The judgment at issue was upheld by three out of four Justices, but it was offensive to Chase. Chase argued that Supreme Court should not presume that the Legislature has been empowered to act in such away as to exercise the judicial office, not that judges should decide cases according to natural reason. As Chase later says again in the opinion “[i]t is not to be presumed, that the federal or state legislatures will pass laws to deprive citizens of rights vested in them by existing laws; unless for the benefit of the whole community, and on making full satisfaction.” Again, presumed. The Rhode Island system was based on the colonial tradition, not a constitutional charter. That is what Chase is worried about.

For more detail, here is the Kurt Lash rebuttal to using Chase's confusing opinion to justify modern libertarian agendas. Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 TEX. L. REV. 331, 403-06 (2004).

And I guess you know by now that the Supreme Court actually affirmed the judgment of the Rhode Island Assembly and not violating the prohibition against ex post facto laws clause, and you are also familiar with Justice Iredell's clear and unequivocal statement that judges had no discretion to decide cases according to natural reason in the very same case you are citing for support.

So that leaves you again with not a single ounce of convincing evidence for your extravagant notion that judicial supremacy to decide cases according to natural reason was codified all along in the 9th amendment, and nobody noticed until Randy Barnett or the Tea Party or whatever.

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Jimmy C
on July 19, 2015 at 15:11:28 pm

1) I think your wrong on locke, he was clearly speaking of the legislative power, not the power of the king (or the executive power which he separated).
2) As to Coke, reason yes, but natural law is another way of saying reason applied to the nature of man. As in Calvin's Case which held that “That this law of nature is part of the laws of England,” “ That the law of nature was before any judicial or municipal law in the world,”” That the law of nature is immutable and cannot be changed.” You can also see it quite clearly in Bonham’s Case declaring an act of parliament void. This wasn’t vesting power in the king, this was power vested in a private party by an act of parliament.
3) Sorry, I was wrong that he was speaking for the court, he was speaking for himself (but he was in the majority he held that the ex post facto clause only applies to criminal law). It is presumed that they did not delegate it, unless the power was explicitly delegated in the constitution by the people to the legislature. This is not a presumption that the legislature can pass a statute to change. Yes, they affirmed, because it wasn’t a criminal case so the ex post facto clause didn’t apply. Yes, Iredell was very clear that he did not believe judges should use natural law, but at the very least his opinion just shows how much more you are wrong as to what Justice Chase was saying (he was making the argument for natural law unlike Iredell who argued against it)

Can you point to any case by Marshal or Story that supports what you are claiming the 9th amendment means? They simply did not deal with any cases directly about the 9th amendment (because the federal law at the time didn’t violate natural rights and so they did not need to decide a case about it, and the 9th amendment at the time didn’t apply to the states)

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Devin Watkins
on July 19, 2015 at 15:53:41 pm

This is fun. But I don't think we are going to resolve our difference of opinion in this forum. Three quick rejoinders and a suggestion.

1. Yes. Locke was speaking of the Legislative Power. But he was particularly concerned, like other Whigs, with acts of Parliament vesting the King with authority to be a judge in his own cause. This was contrary to reason, he thought, based on the emerging constitutional conception of the separation of powers. Like all other Whigs, he subscribed to parliamentary supremacy and positive constitutionalism, .

2. There is a vast amount of articles of authors that understand English legal history showing that the "Tim Sandefur" reading of Bonham's case is wrong, and that Bonham's Case was a case of equitable statutory interpretation, using the precepts of natural reason only as a presumption or a canon of construction. That is how the founders read Bonham's case.

3. I agree that Chase is making the "argument for natural law:" The argument for precepts of natural reason as a rule of construction. Iredell is not that far apart from Chase. Irredell believe that natural law should not be used as an equitable rule of interpretation. But they both agree that judges were constrained by positive law. So, I disagree with you that Iredell's dissent is evidence that Chase was arguing for a jurisprudence based on natural reason as opposed to law. It is only evidence that Iredell disagreed with Chase as to the method of interpreting law. He was particularly worried with a legislature overturning the final judgments of courts, and so he argued that absent clear and convincing evidence, judges should be reluctant to hold that a legislature had done so. Of course, under the federal constitution, Congress cannot revise the final judgments of Article III courts.

My suggestion is, read this article, it is one of the best I have found on the issue, by Chapman and McConnell. http://www.yalelawjournal.org/pdf/1080_y4sioof3.pdf

If you have any article that you think convincing, let me know, and I will read it. I will change my mind if you offer me convincing evidence that federal judges thought they could use natural reason divorced from positive law to strike down legislation.

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Jimmy C
on July 19, 2015 at 16:07:55 pm

That Marshall and Story did not think the 9th amendment was restrictive is clear. They thought it was declaratory, so they did not use the Amendment to decide any particular case. You can look at Justice Story's Commentaries on the Constitution, which basically says that the 9th amendment is declaratory, and maybe useful as a canon of construction, but not much else.

In Barron v. Baltimore, for example, Justice Marshall unequivocally states that the rights of the citizens of the several states are defined respectively in their positive constitutions. He does not say a thing about natural law, despite the obvious taking in the case. You might say that the case involved the city of Baltimore and not Congress, but the case shows that Marshall did not think natural law or unenumurated rights was relevant to decide particular cases. If the positive constitution of Maryland did not protect Barron, Barron was out of luck, pure and simple.

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Jimmy C
on July 19, 2015 at 18:16:12 pm

I don't expect us to convince one another, but others that read the thread will hopefully see the arguments made and decide for themselves. My favorite articles are
on the Ninth Amendment:http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub
and on the 14th P or I clause: http://www.law.nyu.edu/sites/default/files/ECM_PRO_065902.pdf

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Devin Watkins
on July 19, 2015 at 18:28:56 pm

I think section 1240 and 1905 of Story’s Commentaries on the Constitution are at the very lease ambiguous, and the interpretation I propose would fit within what he says the amendment means. But it could even be considered to be strongly suggestive of the strongly enforced rights where the rights under the 9th amendment should be enforced just as much as any enumerated right.

As I said before, the 9th amendment was never meant (at the time before the 14th), to apply to the states, so Barron v. Baltimore is perfectly fine. It was understood that states had their own constitution's for protecting their natural rights and did not need or want the federal government's interference. Not so after the 14th.

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Devin Watkins
on July 19, 2015 at 19:03:04 pm

If you need proof, here is Locke on supremacy in civil society, as distinguished from supremacy in the state of nature, in which every man is supreme onto himself.

149. Though in a constituted commonwealth standing upon its own basis
and acting according to its own nature—that is, acting for the preservation
of the community, there can be but one supreme power, which
is the legislative, to which all the rest are and must be subordinate, yet
the legislative being only a fiduciary power to act for certain ends, there
remains still in the people a supreme power to remove or alter the legislative,
when they find the legislative act contrary to the trust reposed in
them. For all power given with trust for the attaining an end being limited
by that end, whenever that end is manifestly neglected or opposed,
the trust must necessarily be forfeited, and the power devolve into the
hands of those that gave it, who may place it anew where they shall
think best for their safety and security. And thus the community perpetually
retains a supreme power of saving themselves from the attempts
and designs of anybody, even of their legislators, whenever they shall be
so foolish or so wicked as to lay and carry on designs against the liberties
and properties of the subject. For no man or society of men having
a power to deliver up their preservation, or consequently the means of
it, to the absolute will and arbitrary dominion of another, whenever any
one shall go about to bring them into such a slavish condition, they will
always have a right to preserve what they have not a power to part with,
and to rid themselves of those who invade this fundamental, sacred, and
unalterable law of self-preservation for which they entered into society.
And thus the community may be said in this respect to be always the
supreme power, but not as considered under any form of government,
because this power of the people can never take place till the government
be dissolved.

150. In all cases whilst the government subsists, the legislative is
the supreme power. For what can give laws to another must needs be
superior to him, and since the legislative is no otherwise legislative of
the society but by the right it has to make laws for all the parts, and
every member of the society prescribing rules to their actions, they are
transgressed, the legislative must needs be the supreme, and all other
powers in any members or parts of the society derived from and subordinate
to it

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Jimmy C
on July 19, 2015 at 19:24:21 pm

"that is, acting for the preservation of the community" as long as the government is doing that, then it is supreme. 149 is primarily about the right of revolution, but it also shows the just limits to legislative powers. That not all legislative acts are proper and just to be called "laws" for some power was not given to the legislature.

150 is about the legislature being supreme in that it is the only one that can justly write laws. No one can write a law for the legislature and order it to do something, therefor it is supreme in that sense. I do not suggest that judges can write laws or enforce laws that were not written by the legislature.

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Devin Watkins
on July 19, 2015 at 20:00:39 pm

"I do not suggest that judges can write laws or enforce laws that were not written by the legislature." I am pretty sure that is exactly what you said. If judges may enforce "laws of nature," they are enforcing laws "not written by the legislature."

For Locke, when the Legislature breaches and fails to act for the preservation of community, the solution is political revolution. Judges apply only the laws of civil society, in contradistinction to the laws of nature, and they are too puny to restore the Legislature to its proper trust. The idea of judges acting as Hercules is Dworkin's, not Locke's.

I understand your position on Barron v. Baltimore, but at the least it shows that the people in the several states were at the mercy of their own positive constitutions, contrary to your understanding of the founders political theory, despite the fact the right to just compensation was a natural right. Of course, if the 9th amendment really was a roving commission to apply natural law, it seems to follow that all judges would have a duty to require Baltimore to compensate Barron. Or does not?

Anyways, I will read Randy Barnett's article.

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Jimmy C
on July 19, 2015 at 20:25:11 pm

Natural law isn't applied by judges against individuals like positive law can be. Natural law itself gives no power to government, it can only suggest the limits of what power has been given to government. The constitution is the consent of the people that gives power from the people to government to act, and that alone, but only to the limits that the people had the power to give according to natural law.

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Devin Watkins
on July 19, 2015 at 20:37:41 pm

Totally agree. If the people vest a government with plenary power that is the end of it. If the people vest the government with only limited and ennumerated powers, judges are bound to refuse to recognize a law that transgresses those limited powers.

Thus, if Congress decides to regulate local mud pools without any constitutional authority, judges must refuse to recognize that act as proper law.

Where we disagree is that you also think that judges have a roving license to find and apply natural rights nowhere contained in the fiduciary instrument against otherwise proper legislation enacted by the people's representatives.

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Jimmy C
on July 19, 2015 at 20:45:03 pm

The whole point of natural law is that the people cannot vest government with plenary power (also called arbitrary power). That some things (like the right of revolution to alter or abolish government, or the inalienable right to life and liberty) cannot be given up arbitrary power to government (or at least the very least the people cannot be assumed to have consented through the constitution to give it up).

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Devin Watkins
on July 19, 2015 at 20:58:37 pm

I didn't know natural law was so paternalistic.

Note that I have not problem with assuming that the people have not given up liberty absent clear evidence to the contrary.

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Jimmy C
on July 19, 2015 at 21:44:14 pm

Its not about paternalism, but protection of the minority. Say, we are on an island with 10 people, and we get together to create a new government, and 9 people propose a constitution in which they can enslave (take all their liberty) or kill the 10th person any time they want. We vote and get a 90% super majority for our new government. You cant just presume the 10th person to have consented to that. Constitutions and government's are not created through unanimous personal consent, they operate through presumed consent. Likewise, I never voted for the current constitution, but we can have a kind of presumed consent if at least my natural rights are respected, for then I have not lost anything by living under the government.

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Devin Watkins
on July 19, 2015 at 23:10:44 pm

Under Locke's theory of civil government, if the 10th person didn't consent to the original constitution, then he was in the state of nature against the other 9, and he had the natural right to resist through force. The presumption behind the U.S. Constitution, and behind Locke's theory of civil government, is that we have all consented to become subjects to the laws of civil government.

Thus, In Locke's view the 10th person might originally describe the Indian Tribes, but it does not describe you. You are a subject of the United States, and your consent is implied. That fact that you never expressed your consent is irrelevant. We are only back in the state of nature only when we declare revolution to preserve natural rights, or when we seek to preserve our own life, liberty and property from deprivation by another acting outside and without recourse to a higher authority (i.e. a court of law). When a civil society, all you get is recourse to a court to decide according to the law of the land. This is Locke 101 and Magna Carta.

If you are fed up with how the government is operating, well, so are many others. None of this will change by insisting the upper middle class citizens in robes should apply natural law. And it is unnecessary, given that the Federal Government is one of limited and unnemurated powers. An approach that seeks to interpret the actual structure and powers granted in the constitution is infinitely superior to the idea of judges embarking on a course to discern natural law. And state citizens of course, can more or else easily withdraw consent by voting with their feet.

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Jimmy C
on July 19, 2015 at 23:14:09 pm

I meant "when in a civil society"

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Jimmy C
on July 20, 2015 at 01:20:25 am

Yes, clearly the person could justly reject such a government's authority and resist by force, but that isn't the real question. The question before the founders when adopting the bill of rights was how to create the ideal government. A government such as I described which purposefully violates the natural rights of any of the citizens violates the very purpose of having government in the first place which is to protect our rights. The founders prevented this by enumerating a variety of natural rights that must respected and then requiring that all our other natural rights be respected in the 9th amendment (at least by the federal government at the time), so that a majority fraction adverse to the rights of the minority would not become a tyranny of the majority.

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Devin Watkins
on July 20, 2015 at 01:38:54 am

The Founders did not think they could create an ideal government, as they repeatedly emphasize in the Federalist Papers. Hence way they relied on structural constraints and institutions instead of a Bill of Rights (A.K.A. parchment). The Bill of Rights was though unnecessary by most of the Founders, and was added mainly as a symbolic compromise to please Anti-Federalist factions, primarily in the slave-holding South. The Bill of Rights in legal practice has very little importance until the early 20th century. Even Justice Field used the due process clause mainly to confirm the principles of territoriality and separation of powers that were already part of the constitutional structure.The Bills of Rights ascended to its current legal station only after the 1940s, when the Supreme Court capitulated on the structure. It is the Constitution of William Brennan.

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Jimmy C
on July 20, 2015 at 01:40:15 am

Thought not though. I will shut-up now since I can no longer write in English.

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Jimmy C
on July 20, 2015 at 09:51:59 am

Yes the Bill of Rights was though unnecessary, but that was because they believed that a person's natural rights were already protected without needing it to be written out, that the federal government already could not violate a person's freedom of speech or other natural rights.

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Devin Watkisn
on July 20, 2015 at 17:21:07 pm
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Devin Watkins
on July 21, 2015 at 09:51:47 am

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Equality and the Civil Rights Act of 1866: A Final Response to Damon Root - Freedom's Floodgates

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