Censoring South Park

 | 

Earlier this year I read an interview with Matt Stone and Trey Parker, the creative duo behind the hit animated comedy South Park, in conjunction with their new Broadway play The Book of Mormon. What struck me was one of them saying that in the episode of South Park in which they lambasted the cult of Scientology, they had wanted to say that Tom Cruise is in the closet. Their lawyer advised them that Cruise could sue them for defamation, so instead they put the cartoon version of Tom Cruise in a literal closet that he refused to come out of. The result was laugh-out-loud comedic gold, but it highlights one of my major peeves about legal causes of action, which is the law of defamation.

Defamation is a cause of action under which a plaintiff can sue a defendant for damage to his reputation. In For a New Liberty, Murray Rothbard wrote that he believed defamation law should be abolished, because a person’s reputation exists in the brains of other people and the plaintiff has no property right in other people’s minds. My concern is broader; I believe that defamation law scares people away from making statements that might offend those among us with the money to hire lawyers. This fear of being sued for defamation chills people's ability to say what they want. It scares them away from criticizing others, even when the criticism might be justified and deserved.

This danger is often poignant in the case of such artistic representations as South Park, which makes deep, meaningful social commentary by making jokes, often offensive ones, directed at people who could easily take offense and who generally have money. The strange thing is that the first amendment has a clause that guarantees freedom of speech. Why isn't the First Amendment regarded as making charges of defamation unconstitutional?

There is a larger and a smaller answer. The larger answer is that the members of the Supreme Court, even the supposedly “textualist” and “originalist” conservatives, do not take the words of the Constitution literally. They make interpretations that twist and mangle it into something that looks like what they want, something that deforms the meaning of the words on paper, written by the Founders. The smaller, more specific answer is that the Supreme Court has grappled with the conflict between free speech and defamation, and has chosen a middle ground that tries reconciles the two.

Why isn't the First Amendment regarded as making charges of defamation unconstitutional?

In the landmark case of New York Times v.Sullivan (1964), an overseer of Southern police officers, sued the Times and members of the civil rights movement under a defamation theory, accusing them of damaging the policemen’s reputation by publishing an ad indicating that the police had committed crimes against demonstrators. Instead of holding defamation unconstitutional, the Supreme Court found for the defendants, holding that when public officials assert defamation they must prove “actual malice,” meaning that the defendant knew his statement was false or acted with reckless disregard for truth. This is a much higher standard than the “negligence” requirement that applies to defamation against private individuals on matters of public concern or the mere “publication” requirement that applies to defamation by private citizens on a matter of private concern. However, after Sullivan the Supreme Court expanded the actual malice rule to cover “public figures” as well as public officials, so most celebrities, such Tom Cruise, must prove actual malice.

Actual malice was designed to prevent censorship. I am sure that the Court believed it was being quite generous by creating such a high barrier to recovery. But because defamation continued to exist, the fear of being sued and the expense of litigation remain a serious impediment to American free speech and to our ability to criticize people of political and social importance. Speaking freely about the flaws (real or alleged) of our political and cultural leadership is a basic requirement for democracy to function.

A more recent important case is Hustler Magazine & Larry Flynt v.Jerry Falwell, a 1988 United States Supreme Court case in which evangelist Jerry Falwell sued a pornographic magazine for printing a joke that accused him of having sex with his mother. The accusation was obviously a joke that no one could take seriously. It was also clearly an example of the use of charges of defamation to censor criticism and take revenge against people who offend you. The jury found against Falwell on his libel claim, but found against Hustler on the “intentional infliction of emotional distress” claim, which is a somewhat similar cause of action that is also used to censor criticism and punish offensive behavior. The jury awarded substantial monetary damages. The Supreme Court, however, found in favor of the magazine on the “IIED” (as lawyers call it) claim, citing the need to protect the American tradition of political satire cartoons, and held that the New York Times v.Sullivan “actual malice” standard for defamation against public figures should also be used in cases involved intentional infliction of emotional distress claims against public figures, in order to protect free speech and create breathing room for vigorous debate. Regarding the right to be offensive towards other people, the court said that offensive speech is protected by the First Amendment.

But again, the Court refused to see the truth sitting right under its nose, which is that the only real purpose of claims of defamation (or intentional infliction of emotion distress claims alleged against plaintiffs because of what they say or write) is to censor speech; and this violates the first amendment. The law of defamation has no place in a society that believes in intellectual freedom for all citizens. We libertarians are basically the only group of people in America who say that the emperor has no clothes and who criticize governmental mistakes that modern-liberals and conservatives ignore or condone. Defamation is an obvious abuse of the law and of the state’s coercive power to repress independent thinking, and we should all get angry about it.




Share This


Some Thoughts on Sharia Law

 | 

I can’t say I’m in favor of dripping acid into peoples’ faces — but, given the right circumstances, I might appreciate the opportunity. I got to thinking about this back in the summer when Amnesty International called upon Iran to revise its penal code.

Sharia law provides for retributive justice and the retribution in question was made available to a woman named Ameneh Bahrami who’d been blinded when a creep named Majid Movahedi threw acid into her face after she refused to marry him. Outside of being a good judge of potential husbands, Ms. Movahedi holds a degree in electronics and held a job at a medical engineering company. She seems to be an accomplished woman who, even in the Islamic Republic, had a really bright future.

Now it seems that she doesn’t have much of a future at all. I hope I’m wrong about this, but it’s hard to imagine how any blind person could hold down a job in engineering, or how anybody as brutally scarred as Ms. Bahrami is going to have much luck finding a husband to take care of her. What she did have was the opportunity to visit Mr. Movahedi while he was strapped onto a hospital bed and pour acid into his eyes. For a long time, she wanted to do it, and I can’t say I wouldn’t have wanted to, also. Then Amnesty began to put the squeeze on her to back off, Ramadan and the time of forgiveness came around, she forgave and, from looking at the beaming pictures of her scarred face, it’s easy to see she feels pretty good about the decision. Think what would have happened in a similar situation in America.

For starters, the crime wouldn’t have been against Ms. Bahrami. It would have been against the State, and she would have been nothing more than a witness, if the judge had even allowed her to testify, because it’s easy to see a defense lawyer convincing a judge that the mere sight of her scarred face was too inflammatory for the jury to be allowed to see.

Even if she were allowed to testify, it’s not hard to imagine the same defense attorney convincing a jury to acquit on the ground that, since she was blind and all, her ability to identify her attacker simply wasn’t good enough to dispel all reasonable doubt that the guy who’d thrown the acid really was the same man sitting here in court.

Perhaps the prosecutor would be worried about getting a conviction, or just have too many trials to handle, and let Mr. Movahedi plea-bargain his way down to, say, second-degree assault and get off with time already served. No matter how things shook out, Ms Bahrami’s feelings would have had no bearing on the outcome.

I prefer the way the Iranians handle this. I like it that Ms. Bahrami is the one who not only got to decide what happened to Mr. Movahedi, but would have been the one to do it to him.

Or not. Either way, she was the one who got whatever emotional satisfaction there was to be gotten from the situation. I also don’t mind thinking about Mr. Movahedi spending something like the seven years he spent in prison waiting for Ms. Bahrami make up her mind about whether he got the acid treatment.

What Ms. Bahrami did have was the opportunity to visit Mr. Movahedi while he was strapped onto a hospital bed and pour acid into his eyes.

Or, take an example that’s a little closer to me, personally. A few years ago my nephew was riding home on his bicycle. He had just been licensed as a civil engineer, and he and his father were about to launch into business together. He was, when I think about him, the best that his generation, the best that America, had to offer. He was smart and hardworking; he had a beautiful bride, a winning personality, and a glorious future — all of which ended when a middle-aged driver fell asleep, ran onto the shoulder where my nephew was riding, and put a stop to everything except his life with massive brain damage.

The thing was, it was probably the worst day of the driver’s life, too. She showed up at the hospital, sick with grief. And wasn’t allowed to see him. The lawyers thought it was a bad idea. She showed up repeatedly and never got into the room. Always the lawyers.

The boy’s father is a kind, generous man who would have given comfort to the driver, if he had been allowed to. And she to him. But they weren’t permitted to meet. Instead, the only satisfaction he got was to drive out to the highway and look at his son’s blood puddled on the asphalt. And the driver had to watch her trial grind its way through the legal system with no concern for whether the boy she had hit, or his family, even wanted her to be on trial.

Now, imagine if something like this had happened to an American in Oman in the mid-Seventies. It did. To a good friend of mine, only he was the driver.

Three years earlier, no Omani who wasn’t either in the military or the royal family even owned a car. In fact, no Omani even owned sunglasses. The sultan was opposed to things Western. Then he was deposed and the next sultan began to modernize, so the road my friend was driving along was brand new. And the old gentleman standing on the side of the road was newer still to the whole concept of high-speed traffic when he stepped out in front of my friend’s car.

My friend slammed on the brakes, spun the wheel, fishtailed, caught the old man with the rear of his car, then rolled four or five times before coming to a stop. The court my friend had to explain himself to was Sharia: a single judge with a council of elders to advise him.

I mean it when I say that my friend had to explain himself. Nobody got to have a lawyer. The old man spoke, my frind espoke, the police told what their accident investigation had found, the judge consulted with the elders, the village sat in a semicircle and listened, and the judge announced his decision:

To the old man, he said, "Our country is changing and you need to pay attention to those changes. By stepping into the road in the way you did, you have embarrassed a guest in our country."

To my friend, the judge said, "It appears that there was nothing more you could have done to have prevented what happened. I instruct you to pay the old man three rials." Rials were worth about $2.50 at the time, so my friend was ordered to pay seven-and-a-half bucks.

Nobody thought the rials compensated the old man for whatever injuries he had received. That wasn’t the point. The point was dignity. Regardless of how it happened, the old man had been hurt and my friend had been involved. The rials were for honor and, I am almost sure, for my friend too. To clear the books in his conscience as well as to make the old man feel vindicated.

Clearly, the lady who ran down my nephew was a lot more culpable than my friend, but ask yourself. If you had been either driver, would you rather have hired an expensive lawyer to try to justify your actions to a jury chosen at random from voters’ lists and then, if you did get off, perhaps face a trial for civil damages until you were bankrupt from attorneys’ fees? Or would you rather have told your story to a council of wise old men? I know which one I would choose.




Share This


Marshall v. Jefferson

 | 

In the September 2009 issue of Liberty (in a book review entitled "Liberty and Literacy"), Stephen Cox — ever the analytical wordsmith — extols the content and form of Thomas Jefferson’s brilliant first sentence, second paragraph of the Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”

Focusing on the form, he paraphrases the passage into run-of-the-mill prose and berates the reader who can’t tell the difference. He says that “language is not just a method of communicating… (It) is a way of creating pleasure,” and that if one doesn’t see that, then one is illiterate, knows nothing about writing and should —  go away.

Braving Cox’s acid pen and his usually faultless reasoning, I took issue with his (and nearly everyone else’s) assessment of Jefferson’s passage. I responded in Liberty in November 2009:

“Lofty words. Pure poetry, perhaps — but devoid of any connection to reality. It is not self-evident that '“all men are created equal,' or 'that they are endowed by their Creator with certain unalienable rights,' or 'that among those are Life, Liberty, and the pursuit of Happiness.' One need only look at the history of the Bill of Rights and its ignored 9th Amendment to realize that the only rights citizens retain — much less 'are endowed with' — are those that they explicitly claw from their government; Life, Liberty and the pursuit of Happiness not included. Perhaps they were too 'self-evident'?

“It took nearly 100 years for those three self-evident rights to be included in the Constitution under the 14th Amendment as 'life, liberty, or property.' And even now they’re not secure. 'Pursuit of Happiness' was an elegant albeit vague and meaningless euphemism for property, which Jefferson was loath to include, fearing it might justify slavery. Unfortunately, the omission later caused such an erosion of property rights that there is now popular clamor for a property rights amendment to the Constitution (in spite of the 14th Amendment).

The government established under the Articles of Confederation was about as powerful and effective as today’s United Nations.

"The slippery nature of even enumerated rights — much less 'self-evidently endowed' rights — comes to mind in Justice Oliver Wendell Holmes’ dissent in the Lochner v. New York case. His particularly perverse interpretation of the 14th Amendment, using original intent, mind you, found that since the amendment was originally written to protect the rights of freed slaves, it could not apply to workers and management deciding the length of their workday. But then, he was famous for declaring that he could decide any case, any way, using any principle. (He’d later go on to find that eugenics, as government policy, was justified under the Constitution.)

“As populist rabble-rousing, Jefferson’s clause is second to none, and in that sense, it is great writing. However, as a description of reality or a recipe for government, it is a complete failure. Therefore I must counterintuitively conclude, being a firm believer in the dictum that form follows function, that the clause in question is neither effective nor elegant writing.”

Only later, after reading R. Kent Newmyer’s legal biography of John Marshall, the fourth Chief Justice of the United States, John Marshall and the Heroic Age of the Supreme Court, did I that realize that I was not alone in being skeptical of "natural rights" and, instead, advocating enumerated rights.

The controversy over enumerated versus self-evident rights began immediately after the Constitutional Convention disbanded and each state was asked to ratify the new document. Contrary to what today’s tea partiers, radical states’ righters, and some libertarians and conservatives believe, the Constitution was created to increase the power of the federal government, both absolutely and over the states. Under the previous arrangement — the Articles of Confederation — the federal government was dependent on the whims of the states — individually, mind you — for voluntary revenues and a host of other items. These constraints made defense of the new country a much tougher proposition — in raising an army and funding a war. In today’s terms, the government established under the Articles of Confederation was about as powerful and effective as today’s United Nations.

To John Marshall, Alexander Hamilton, and a coterie of other patriots who would later coalesce into the Federalist Party, this arrangement spelled ruin for the new country — not only because the United States might not be able to defend itself adequately, but also because it wouldn’t be able to pay its bills dependably, obtain credit, or participate in the foreign exchange mechanisms necessary for international commerce.

Under the old dispensation, individual states were responsible for debts incurred during the Revolutionary War, and some were thinking of defaulting, either from irresponsibility or from spite toward some of the Brits who’d bankrolled them. As Hamilton observed about the debt and its consolidation under federal responsibility, it was "the price of liberty." Additionally, each state (as well as private entities) could issue its own currency. Without the full faith and credit of a central government, the new country would be unable to participate effectively in international trade — a serious impediment under the new, capitalist world order.

Without the full faith and credit of a central government, the new country would be unable to participate effectively in international trade — a serious impediment under the new, capitalist world order.

Most delegates to the Constitutional Convention appreciated this. Yet, because the new Constitution increased the federal government’s power, some delegates (anti-federalists, later to coalesce around Thomas Jefferson and his Democratic-Republican Party), fearing tyranny, fought for a bill of enumerated rights, limiting the federal government. The idea that such a bill would be forthcoming may have beena make-or-break point for ratification.

Counterintuitively, people opposed to including a Bill of Rights (many of them Federalists) replied that it was impossible to enumerate all the self-evident rights that the people retained; that enumerating a few rights would guarantee only those; and that the unenumerated rights would forever be lost (think of the right "to privacy," later discovered in penumbras and emanations, together with the right "to earn an honest living," "to marry a person of the same sex," "to marry more than one person," "to cohabitate," "to fight for your country in spite of being gay," "to suicide," "to ingest any substance," "to enter into contracts," "to make obscene profits," etc. — you get the point).

As we all know, the Jeffersonian anti-Federalists won the battle for the Bill of Rights, mostly because the Federalists’ arguments — vague and hypothetical — did not have the immediacy of the fear of tyranny. The odd hitch — to a modern audience — was that the Bill of Rights did not apply to state governments, only to the federal government. Massachusetts retained a state religion until 1830, and the Bill of Rights wasn’t interpreted to apply to the states until the passage of the Fourteenth Amendment after the Civil War.

In order to allay Federalists’ concerns, the Ninth Amendment to the Constitution stated: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Unfortunately, that language has become meaningless — as well it should, if examined critically.

Robert Bork, who failed to be confirmed to the Supreme Court because some senators thought him too conservative, both politically and judicially, has likened the Ninth Amendment to an inkblot. In The Tempting of America he argued that “while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot.” From the Left, Laurence Tribe has said that “the ninth amendment is not a source of rights as such.” The best defense of the Ninth comes from Randy Barnett, a libertarian constitutional scholar (and contributor to Liberty), who says that it “calls for a presumption of liberty.”

Marshall, in spite of his Federalism, understood the problem with the Ninth Amendment and advocated the enumeration of rights. He did not believe in natural rights endowed by a creator; he believed that we the people endow ourselves with rights based on expediency and tabulated as positive law. He was a nuts-and-bolts lawyer who believed that the best laws were those that required the least interpretation. Ironically (as we shall see), though he eschewed grandiose philosophical visions and paradigms, he is best known for defining the role of the Supreme Court in the new United States and establishing a rock-paper-scissors hierarchy among the three branches of government that remains the modern modus operandi.

Marshall was a nuts-and-bolts lawyer who believed that the best laws were those that required the least interpretation.

Marshall’s concern with rights was particularly personal. An admirer of John Locke, Marshall was obsessed with the sanctity of contracts to a degree that today might be considered excessively libertarian. He believed that the terms of a contract superseded statutory limitations. For example, in a minority opinion, he opined that bankruptcy laws could not relieve a debtor from a previous obligation. Likewise, he would have heartily supported the 1905 Lochner v. New York decision that overthrew a statute limiting the working hours of bakers as an infringement of the rights of employees and employers to negotiate their own contracts. He also believed that legislation was a contractual obligation of government to the citizenry. In Fletcher v. Peck (1810), Alexander Hamilton, representing a group of investors — including himself — argued that a Georgia state law authorizing a land sale was a contract, and that Georgia's Rescinding Act of 1796 invalidating the sale was unconstitutional under the contract clause of the constitution. Marshall agreed.

These perspectives had the curious effect of another rock-paper-scissors round robin: though Marshall was a strong advocate of the supremacy clause, the phrase in the Constitution stipulating that federal law trumps state law (a big damper on states’ rights), his view of contracts tends to elevate individuals above both state and federal law. But I digress — back to Marshall’s personal concern with rights.

Marshall and his family were speculators in lands west of the Appalachians. Like most libertarians and economists today, Marshall saw nothing wrong with speculation; in fact, he believed that speculators provided services essential to the opening of new tracts for settlement — subdivision, assessment of resources, initial price arbitrage, surveying into lots, market making, etc. The buying and selling of deeds required contracts, the details of which, he believed, were between the parties involved, and should be arrived at with minimal government interference.

But speculators, then as now, had a bad reputation among the substantial portion of the population that didn’t understand their function and thought they were making profits without effort. These folks, Thomas Jefferson prominently among them, believed in the ideal of a republic of small, yeomen farmers. Speculators were just an unnecessary — even an evil — obstacle to that ideal.

Jefferson and Marshall despised each other. Though the Democratic-Republican Jefferson managed to restore his friendship with Federalist John Adams, he could not stand fellow Virginian Marshall.

Marbury v. Madison

Though not the beginning of their feud, Marbury v. Madison — one of two of Marshall’s most famous decisions — best summarizes their intellectual conflict. It is the decision that established the power of the Supreme Court to overturn congressional legislation through the principle of judicial review, thereby elevating the Supreme Court to coequality with Congress and the Executive.

Judicial review, already a long-standing legal principle in other contexts, was a power not specifically granted to the newly-established Supreme Court. Marshall understood that without it, the Supreme Court could never properly function as one third of the triad it was designed to be, since an effective separation of powers required three equally potent branches of government. It is a complex and convoluted decision, tight in reasoning, and difficult to explain. I’ll give it a shot.

The case began amid the bitter political conflicts of the waning days of Adams’ administration. The (barely) peaceful transfer of power to the opposition was a landmark in the new nation’s development. Still, anti-Jefferson riots were expected in the capital.

In a bold attempt to curtail the new administration’s power, Adams nominated Marshall, his Secretary of State, as the new Chief Justice of the United States. The Federalist-controlled lame-duck Congress not only quickly confirmed him, it also passed a law authorizing the appointment of a number of justices of the peace to govern the District of Columbia in case the riots materialized. Adams immediately appointed 42 Federalist judges.

Jefferson was livid. As Newmyer says:

“Unfortunately for historians, there were no cameras to record the deliciously ironic moment on March 4, 1801, when the new chief justice administered the oath of office to the new president. With his hand on the Bible held by Marshall, Jefferson swore to uphold the Constitution Marshall was sure he was about to destroy…It was not coincidental that Marshall turned his back to the president during the ceremony. . . . Jefferson had already concluded that the federal judiciary had to be humbled and ‘the spirit of Marshallism’ eradicated.”

The (barely) peaceful transfer of power to the opposition was a landmark in the new nation’s development. Still, anti-Jefferson riots were expected in the capital.

The new appointments were duly signed and sealed but, ominously, not all of them were delivered by the Secretary of State (still John Marshall), whose job it was to finalize the procedure, but who had only had the last week of the Adams administration in which to comply. When James Madison, Jefferson’s newly appointed Secretary of State (and an author of the Constitution), assumed his duties on March 5 he discovered the remaining undelivered appointments.

Jefferson ordered Madison not to deliver the commissions. Enter William Marbury, one of the prospective justices appointed by Adams. He and three other denied appointees, petitioned the Supreme Court for a writ of mandamusdirected at Madison, in essence ordering him to comply.

Meanwhile, the new Democratic-Republican Congress repealed the legislation that authorized the appointments in the first place and, adding fuel to the fire, cancelled the 1802 Supreme Court term, Marshall’s first. The intervening period permitted Marshall and his colleagues to ponder the constitutionality of events, the dangers of challenging executive authority head-on by issuing the mandamus, and the formulation of strategy.

For two years, the Court’s powers, or lack thereof, had been debated in Congress and in the court of public opinion. The Court had even been a focus of Jefferson’s political agenda. Specifically, was the Supreme Court subservient to Congress or the Executive or both, or was it equal in stature and power? Marshall was looking for an opportunity to settle the debate, and Jefferson gave it to him when he blocked Adams’ judicial appointments.

The new Democratic-Republican Congress, adding fuel to the fire, cancelled the 1802 Supreme Court term.

In February 1803, the Court came out fighting, opening its term with Marbury v. Madison. Immediately, Jefferson — claiming executive privilege — insulted the Court by refusing to permit US counsel to appear or executive witnesses to be heard. And he continued to stonewall, micromanaging executive witnesses even when the Court established, after much technical to-ing and fro-ing, that it did indeed have jurisdiction in the case, and that it could go forward.

In what was to become his typical fashion, Marshall (with a unanimous Court), decided the case on narrow grounds: the rule of law. He stated that Marbury’s office was vested when President Adams signed his commission; that at that point — irrespective of mundane details — the operation of law began. Marshall, to Jefferson’s great irritation, virtually lectured the new president that he was not above the law.

So, where is the judicial review, the Court’s power to overturn congressional legislation, for which Marbury v. Madison is so well known? In the last six pages of the 26-page opinion, in which the court struck down section 13 of the Judiciary Act of 1789. Marshall's reasoning almost became the proverbial camel passing through the needle's eye.

In the Act, Congress had magnanimously granted the Supreme Court the right to issue mandamus writs, reasoning that, since the power wasn’t specifically granted by the Constitution — and the Court couldn’t very well function without it — it was necessary for the Court to have it.

Marshall disagreed on two major points. First and foremost, he declared that Congress — through simple legislation — could not change the Constitution, and that only the Supreme Court had the power to interpret it. Second, for a variety of reasons, Marshall decided that the Constitution already gave the Court the power to issue mandamus writs.

Confused? There is no doubt that Marshall was out to prove a point and — with some fancy footwork — had to weave a sinuous path to make it. Luckily (and some say, with Marshall’s prodding and collusion) circumstances, timing, allies, and even adversaries, all fell into place for him. Almost all aspects of the decision are still debated, even as to whether it was at all necessary; mainly because many commentators believe the Constitution already implicitly grants the power of judicial review to the Court. In Federalist No. 78, Hamilton opines that not only is judicial review a power of the Court, it is a duty. Not one delegate to the Constitutional Convention argued against the principle.

Jefferson — claiming executive privilege — insulted the Court by refusing to permit US counsel to appear or executive witnesses to be heard.

But critics claimed that the Marshall court had vastly overreached. Jefferson himself believed that the president (and the states) had the power to interpret the constitution, and he forever fulminated against the decision. Congress, however, was not troubled and took it in stride — which leads Newmyer to conclude that, “put simply, it was presidential power, not congressional authority, Marshall targeted.” The Supreme Court’s power of judicial review was extended over the states in 1816 in Martin v. Hunter’s Lessee,another Marshall decision.

Jefferson versus Marshall

John Marshall was the longest serving — and arguably the most important — chief justice. Serving from 1801 to 1835, he presided over the most formative decisions the new country faced. He helped to establish a balanced, effective, and more manageable government, and helped set the tone for the future sparring among the three branches of federal power. During his term, the Constitution became much more than a founding document — it became something closer to accepted law.

Today most of us perceive political parties as somewhere within the Left-Right continuum. It is difficult to see things in any other way: that’s how today’s politics play. But the Federalist versus Democratic-Republican divide was an entirely different one.

Although most people today associate Jefferson with individual rights and a fundamentalist view of the Constitution; and the Federalists with the advocacy of a strong central government, the distinctions are not so facile and clear-cut. For one, the Democratic-Republicans supported slavery, while the Federalists generally opposed it. These positions led the Jeffersonian tradition directly to the policies of Jackson, Calhoun, and, finally, Jefferson Davis; while the Federalist tradition led to Lincoln.

The irony here is that those who were most skeptical of the Constitution are the ones referred to as “strict constructionists,” while the Federalists are regarded as free-wheeling interpreters of its provisions.

The Federalists were the first to see and understand the failure of the Articles of Confederation, so they pushed for change. The anti-Federalists thought that the Articles could be tweaked for improvement and were skeptical about the whole constitutional enterprise. In the end, they accepted it reluctantly — and showed it. To them, “strict constructionism” meant that if the Constitution granted one the right to eat, the right to obtain food didn’t automatically follow. Or, if it granted the right to free political speech, the right of media accessibility for broadcasting that speech — since it wasn’t actually spelled out — didn’t exist. Such thinking, often imbued with deep resentment, led to muddled action, ambivalence, and, sometimes a reversal of roles — with the president himself leading the way.

Jefferson, expecting an immediate victory, ordered a squadron of ships to destroy the Muslim navies. The war dragged on for almost 15 years.

Jefferson’s cavalier attitude toward the Constitution was shown early in his presidency, with his 1801 attack on the Muslim state of Tripolitania on the Barbary Coast (Tunisia, Algeria, Morocco, and present day Libya) without a congressional declaration of war, which contemporary opinion believed he was constitutionally obligated to obtain. Several of the Barbary states had demanded tribute from American merchant ships in the Mediterranean. When the Americans declined, the Pasha of Tripoli captured several seamen and held them for ransom. Jefferson, expecting an immediate victory, ordered a squadron of ships to destroy the Muslim navies. The war dragged on for almost 15 years.

But it was the Louisiana Purchase — the constitutionality of which even Jefferson was skeptical about — that was really troublesome. For starters, the Constitution did not empower the federal government to acquire new territory without the universal consent of every state (as per Andy P. Antippas' view in his History of the Louisiana Purchase). Some of the articles of the Purchase Agreement were also in violation of the Constitution because they gave preferential tax treatment to some US ports over others; they violated citizenship protocol; and they violated the doctrine of the separation of powers between the president, Congress, and the judiciary.

As Antippas recounts:

“Jefferson and his fellow Republicans were 'strict constructionists.' i.e., they allegedly adhered to the letter of the Constitution and were strong proponents of 'state’s rights' and 'limited government;' however, Jefferson and most of his party members chose simply to ignore all the Constitutional issues as merely philosophical for the sake of expediency — Jefferson’s response to his critics was 'what is practicable must often control what is pure theory' — in other words, 'the end justifies the means.'"

Jefferson’s specious argument to his critics was that the federal government's power to purchase territory was inherent in its power to make treaties. The Senate bought that argument and ratified the Louisiana treaty.

In their individual approaches to personal liberty, Jefferson’s and Marshall’s actions speak volumes. As I’ve already mentioned, Marshall was fanatically laissez-faire, while Jefferson favored greater economic regulation for what he thought was the good of society. Specifically, Jefferson favored a society of agrarian smallholders and did not approve of speculators buying up western lands as soon as they were available — he wanted smallholders to get in on the action right away. He did not understand the redeeming socioeconomic value of speculators, abhorred their — in his view — unearned profits, and advocated restricting or eliminating these — again, to him — unnecessary middlemen, prominent among whom were Marshall and his family.

Both were Virginians and slaveholders, but their treatment of slaves differed markedly. Jefferson is known to have beaten his slaves; there is no evidence that Marshall ever did. In his will, Marshall wisely granted more liberty to his slaves than we might intuitively suppose today. He gave them two options upon his death: liberty, with severance pay, so they could set themselves up independently (or emigrate to Liberia); or continued servitude, in case the radical transition to liberty was more than they could handle. In 1781, near the end of the Revolutionary War, 23 of Jefferson’s slaves escaped to the British.

Marshall's and Jefferson's approaches to Native Americans were even more illuminating. Though Jefferson’s words spoke respectfully, even admiringly, of the noble savage, his policies began the trail of tears that would destroy cultures and result in the reservation system.

As soon as Louisiana was purchased, Jefferson embarked on a cold-blooded policy toward Native Americans. In a lengthy letter to William Henry Harrison, military governor of the Northwest Territory, he explained that the nation's policy "is to live in perpetual peace with the Indians, to cultivate their affectionate attachment from them by everything just and liberal which we can do for them within the bounds of reason." But he goes on to explain "our" policy (presumably his own, and that of the United States) on how to get rid of every independent tribe between the Atlantic states and the Mississippi, through assimilation, removal, or — if push came to shove —  "shut(ting) our hand to crush them." Finally, in secret messages to his cabinet and Congress, Jefferson outlined a plan for the removal of all Native Americans east of the Mississippi to make sure that the land would never fall to the French or the British, who chronically supported the Indians in their disputes against the US.

Marshall, in contrast, did everything he could to prevent the confiscation of Indian land and the eviction of the Indians from Georgia, in a series of cases collectively known as the Cherokee Indian cases.

As a young man, while serving in the Virginia House of Delegates in 1784, Marshall supported a bill that encouraged intermarriage with Native Americans. Three years later, in the Indian slave case of Hannah v. Davis, he argued successfully that Virginia statute law prohibited the enslavement of Native Americans.

The Cherokee Indian cases, too long and complicated to detail here, came before the court in the early 1830’s, when Andrew Jackson was president. The final one, Cherokee Nation v. Georgia, turned on the supremacy clause. In a bald-faced land grab, Georgia had declared sovereignty over Cherokee lands. The Cherokees sued. The Marshall court decided that Indian affairs were the province of the federal government alone; therefore the Georgia statutes that claimed control over Indian lands were null and void. But neither Georgia nor Jackson — both strong states’ rights advocates — nor Congress supported Marshall’s decision. Jackson is reputed to have said, “John Marshall has made his decision, now let him enforce it.” Congress, meanwhile, had passed the Indian Removal Act of 1830, which Jackson heartily endorsed. It was a Pyrrhic victory that few Cherokees savored on their forced march along the "trail of tears and death" to Oklahoma.

McCulloch v. Maryland

Besides the fundamental issue of judicial review, another fundamental issue remained to be addressed in order to make the Constitution something closer to ultimate law, as opposed to simply a guiding, founding document: objective guidelines for practical interpretation. Other than the Federalist papers, which were not law, firm guidance about constitutional interpretation was lacking.

At one end of the spectrum was the strict fundamentalist approach (see examples already mentioned above), akin to religious fundamentalist interpretations of the Bible: virtually no interpretation. At the other extreme were freewheeling, almost poetic readings — complete with what today are called “penumbras and emanations.” With Holmesian effort, one could interpret anything, anywhere, in any way. This was not only impracticable law, but a recipe for tyranny. In 1819 Marshall got the opportunity — again, with some prodding and collusion on his part — to set the standards.

The constitution had given Congress the power “to coin money and regulate the value thereof.” Under that clause, the first Congress — with the approval of President Washington — chartered the first Bank of the United States, legitimized by its power to coin money. Though Jefferson opposed it, he left the bank in place. He and his political friends referred to it as "Hamilton’s bank." Being strict constructionists, they argued that it was Congress that had been empowered by the constitution to coin money, not the Bank. However, four years without the bank during the War of 1812 spoke eloquently about the value of its services. When a charter for a second Bank of the United States (the first charter ran for only 20 years) was introduced in 1816, it had the support of President Madison, who signed the bill into law. Only Virginia's congressional delegation voted (11 to 10) against the bank.

Though Jefferson’s words spoke respectfully, even admiringly, of the noble savage, his policies began the trail of tears that would destroy cultures and result in the reservation system.

Though the Constitution had empowered the federal government to coin money, it had not explicitly barred states from doing so. Virginia, a staunch states’ rights advocate, kept its Bank of Virginia, headquartered in Richmond. And there was one of the rubs: the branch of the Bank of the US stationed in Richmond was too much competition for the alternative, state banking system.

Exacerbating the dispute was the mismanagement of the Second Bank of the United States, which — shades of today’s crisis — had provided easy credit for a land boom in the south and west. When the bank called in its improvident loans to state banks — to cover its own debts, which it had improvidently incurred — the default of banking institutions swept like wildfire across the southern and western states.

Battle lines were drawn. The states moved against the national bank. Ohio, in the most radical reaction, outlawed the Bank of the United States, using the theory of “nullification," according to which states could cherry-pick federal laws, rejecting whichever they chose. Nullification had been around since 1798; it gained from the support of none other than Jefferson and Madison. (Though it must be admitted that when pressed about the constitutionality of nullification, Madison hedged and declared that it was an extraconstitutional option.) Taken to extremes, nullification implied the right to secede, with each state being judge of the constitutionality of its own cause; and, as Ohio later tried to do with McCulloch v. Maryland, the right to reject Supreme Court decisions. Though the Civil War and numerous Supreme Court decisions have hacked both the legs and arms from nullification, like the black knight in Monty Python’s Holy Grail it keeps coming back for one more round. Russell Pearce, an Arizona state senator, is sponsoring the latest nullification bill. Libertarians should reflect on the fact that nullification cuts both ways: it is at least as likely to be used to nullify as to uphold individual rights.

To cover its debts, Maryland passed a law taxing — in the most punitive and unconventional manner — the Bank of the United States. James McCulloch, head of the bank's Baltimore branch, refused to pay the tax. Maryland sued.

When the case finally reached the Supreme Court in 1819, Marshall found for McCulloch — less than a week after the conclusion of oral arguments, leading some to wonder whether he’d written the decision before hearing counsels’ arguments. As well he might. Not only was the case “arranged” (both parties sought an expeditious decision), but Marshall apprehended the issues immediately, commenting to a fellow justice that “if the principles which have been advanced on this occasion were to prevail, the constitution would be converted into the old confederation.”

Many principles were in play in Marshall's decision: federal supremacy over the states within a constitutional sphere (Maryland could not punitively tax a federal institution), judicial review (reaffirmed), nullification (denied — state action may not impede valid constitutional exercises of power by the federal government)and finally, the most important issue, implied powers.

Invoking the necessary and proper clause of the Constitution, Marshall declared:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Here, finally, was an objective guideline for the interpretation of the constitution. Accordingly, the constitutionality of the Bank of the United States was established without a doubt. By extension, its heir today, the Federal Reserve Bank, is a valid, constitutional entity empowered by Congress “to coin money and establish the value thereof” — however much we may disagree with its methods and their effects.

* * *

Much controversy over the Constitution and its meaning continues — witness the Russell Pierce case and the calls for the abolition of the Federal Reserve. Even the Bill of Rights is not fully settled law. During recent arguments before the Court, Justice Elena Kagan sought to minimize the importance of an attorney’s statement, with which she disagreed, by referring to “buzz words”:“heightened scrutiny” and “rational basis.” These words refer to the standards a court should employ in assessing the impact of governmental action that may affect individual rights. As Chip Mellor of the Institute for Justice has stated in Forbes, contemporary judicial activism has “creat[ed] a hierarchy of rights with those at the top (like the First Amendment) receiving relatively strong protection — the heightened scrutiny — and those at the bottom (property rights and economic liberty) receiving very little," since these latter are thought to require a "rational basis" for review.

Following Cherokee Nation v. Georgia, Jackson is reputed to have said, “John Marshall has made his decision, now let him enforce it.”

The Constitution is only "settled" law in the sense that nearly all Americans accept it as not only our primary founding document, but also as the lawful basis for our government. In many other respects, it is far from "settled" — witness the extremely varying interpretations ascribed to it and the continuing legal battles over exactly what it means and how to apply it. John Marshall, in Marbury v. Madison and McCulloch v. Maryland, set parameters within which that debate should productively take place. Understanding those two cases — and Marshall's perspective — is essential to a knowledgeable understanding of our government's structure and powers.

As libertarians, we can be most effective if we work within the framework of accepted law to protect and extend liberty, rather than making ineffective flanking attacks from the swampy fringes, armed with quixotic arguments. The Constitution must be scrupulously and objectively interpreted, and with due respect for Marshall’s great tradition: first, as Randy Barnett has suggested, according to “original meaning” of the words used at the time; then, according to “original intent” — a less stringent bar, requiring interpretation of documents such as the Federalist Papers. This approach to interpreting the Constitution is a firmer bulwark for liberty than the well-intentioned but murky intellectual musings of Jefferson, which — though noble and intelligent — are no substitute for tight legal reasoning.




Share This


The Audacity of a 1% Hope

 | 

Federal Judge Roger Vinson of the Northern District of Florida has declared Obamacare unconstitutional in a lawsuit joined by numerous states seeking to escape from the onerous burdens that the law places upon them. But when I read that his rationale is that the mandate requiring people to buy health insurance exceeds the power of Congress under the commerce clause, I became a little bit sad — sad not because Judge Vinson is just dangling the dream of a new attempt to use commerce clause jurisprudence to limit the government’s meddling in the economy, but because there is only about a one in 100 chance that the United States Supreme Court will agree with his reasoning.

There was a time when Congress could only pass laws authorized by the specific enumerated powers of the Constitution. (This is ostensibly still true, but most congressmen don’t take it seriously.) One of those powers, indicated by the commerce clause, is the major one that Congress uses to destroy — I mean, to regulate — the economy. The commerce clause states: “Congress shall have power… to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In my constitutional law class final exam two years ago, I argued that the commerce clause clearly gives Congress precisely the same power to regulate economic activity within a state that it has to regulate economic activity within foreign nations, and since we obviously cannot march into France and order them to have a minimum wage or a health insurance mandate, and we can really only regulate goods from France that come across the Atlantic Ocean, the commerce clause means that Congress can only regulate goods that physically cross state lines. I got an A in the class.

However, most lawyers don’t think that way. Even back in the 1800s the commerce clause case law said that Congress could regulate anything that did not take place entirely within one state. There was a time before the New Deal when the Supreme Court still took the commerce clause seriously and tried its hardest to allow Congress only to regulate interstate commerce. But this interfered with the New Deal. So, after FDR threatened the court with his infamous court-packing scheme, the Court made a “switch in time that saved nine,” in the landmark case of NLRB v. Jones & Laughlin Steel Corp. (1937); it began to undermine the commerce clause by permitting the commerce power to extend wherever commerce within one state had effects across state lines.

Later, US v. Darby (1941) made it clear that the commerce clause was now a joke and Congress could do anything it wanted. To throw a little paint on the feces, the Court decided Wickard v. Filburn (1942), which said that a private individual’s private behavior within one state could be “interstate commerce” under an aggregation theory that proposed the questions: “What if everybody did this? Would the aggregate cumulative effects have an impact on interstate commerce?” This meant that a person growing tomatoes in his own farm for his personal consumption could be engaged in interstate commerce, even though the tomatoes never left his farm, because he was somehow magically connected to all the other tomato farmers out there — a conclusion that is ridiculous only if one does not understand that it is a mere pretext for socialism. FDR’s supporters argued that economics had somehow fundamentally changed since America’s founding, and the law needed to change with it.

Commerce clause jurisprudence remained buried for decades, but in a shallow grave. In the 1990s, Chief Justice Rehnquist, with help from Justice Thomas and the Court’s other conservatives, tried to revive the distinction between economic and noneconomic, and national and local, in cases such as US v. Lopez (1995), which struck down a gun ban under the commerce power, and US v. Morrison (2000), which struck down an anti-gender violence law as having nothing to do with interstate commerce. Then Justice Scalia murdered Rehnquist’s commerce clause revival in Raich v. Gonzales (2005), saying that the commerce power authorized the criminalization of medical marijuana because of the necessary and proper clause: “Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” For some reason, Scalia failed to understand that the necessary and proper clause is irrelevant if Congress cannot pass a law under the commerce clause in the first place.

The fate of America’s healthcare system now turns on how the Supreme Court will interpret the commerce clause, whether the justices will hold that the aggregate effects of choosing not to buy health insurance constitute interstate commerce. I predict that the vote will go along political ideological lines, as the choice of whether to take the commerce clause seriously as a limit on Congress’s power is as much a political as a legal decision. But there is no way to tell how Justice Kennedy will vote, and it is still too early to tell how Obama’s appointees will vote. Still, I estimate that there is only a 1% chance that Obamacare will be struck down. It has been many decades since the commerce clause limitation had teeth; and the Court will be afraid of accusations that it is frustrating the will of the American voters if it strikes Obamacare down, even though it is the role of the judiciary to check the tyranny of the majority, and most Americans don’t like Obamacare, anyway.

Nonetheless, if libertarians are to make ourselves known in the legal world, then the commerce clause is one of the main weapons that will need to be in our arsenal. We can hope that one day our constitutional jurisprudence will return America to the Founding Fathers’ vision of a federal government that cannot do whatever it wants. As my constitutional law professor was fond of saying, constitutional doctrines fade away, but they can always come back, and there are libertarian legal doctrines from American history that we can revive if and when we develop the power to make our voices heard in within the legal system.




Share This


The Invisible Tribe

 | 

People who say the Constitution is “living” or “invisible” usually don’t like what it says and don’t have the patience or the votes to amend it.

In February, the New York Times ran a piece by Laurence Tribe entitled "On Health Care, Justice Will Prevail," in which he argues that not only is the individual mandate in the new healthcare law constitutional, but it is both necessary and good. He also delivers what sounds like a series of short pregame pep-talks to the more conservative Supreme Court justices, seemingly trying to finagle them into joining the majority that he confidently predicts will uphold the constitutionality of the mandate.

Laurence Tribe is a professor of constitutional law at Harvard Law School and the Carl M. Loeb Professor at Harvard University. Widely considered to be the foremost current authority on the laws and Constitution of the United States, he has argued 34 cases before the Supreme Court, including Bush v.Gore, arguing for Mr. Gore. Among Tribe's former students and research assistants are Supreme Court Justice Elena Kagan, Chief Justice John Roberts, and President Barack Obama, whom he called “the best student I ever had” (The Concord Monitor, November 14, 2007).

Here I will examine four specific points in Tribe's essay in the Times: (1) an error in word choice, (2) a sentence that misleads through lack of clarity, (3) a conclusion built on a false premise, and (4) an answer that begs a question. The constitutionality of the mandate and its fate in the Court will be addressed only when they touch on these smaller points. The pep-talks will not be examined. The elusiveness of objectivity will be the subject of the conclusion.

The first and second points are in paragraph four:

"Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability."

The first point is in second sentence, where Tribe asserts that, if “risk-prone individuals could opt out of insurance,” those remaining could be saddled with “unacceptably high premiums.” Using the same formula: If all drunks who ride motorcycles opted out of a health insurance pool, the premium paid by the people who remained would go sky-high.

It is as though Laurence Tribe has stood on a soapbox in Harvard Yard and shouted, albeit in bureaucratese, “The individual mandate is Marxist.”

This is nonsense. Only when risk-averse, not risk-prone, individuals drop out en masse do the premiums for those remaining rise. The wrong word was used. Using the corrected formula, the point that Tribe may have been trying to make can be illustrated with the same hypothetical: all teetotalers who do not ride motorcycles must be made to pay health insurance premiums high enough to cover not just their own modest health-related expenses, but also the astronomical medical bills of drunks on Harleys.

Now it makes sense; that is to say, the revised formula’s effect on the price of premiums makes sense, not the system that doesn’t permit sober people to opt out.

The second point is the wording of the final phrase, “for the system to work, all individuals . . . must participate to the extent of their economic ability.” This is the sort of vague language bureaucrats use to camouflage authoritarian unpleasantness.

If clarity had been the goal, it might have said: “Each person must be compelled to buy health insurance and to pay a price directly proportional to the amount of money he has so that medical care can be provided to each person according to his medical needs.” Sorry, that’s less clear, and too wordy. Try this: “From each according to his ability, to each according to his needs” (Marx, Karl, Critique of the Gotha Program).

If the reader pauses now, and dispassionately compares Tribe’s meaning with Marx’s, he will, if he is honest with himself, conclude that the two are, in fact, the same. It is as though Laurence Tribe has stood on a soapbox in Harvard Yard and shouted, albeit in bureaucratese, “The individual mandate is Marxist,” a term employed here not in any pejorative sense, but in an effort accurately to convey the meaning of the carefully crafted phrase “must participate to the extent of their economic ability.”

To make matters even more jarringly redistributive, equivalent amounts of medical care will not be provided under this steeply progressive pricing scheme. Because good health and wealth are positively correlated, “for the system to work,” those with the most modest medical bills will pay the most for the insurance and those with the most expensive bills will pay little or nothing. Tribe was probably trying to state this truth as plainly as he could without triggering the howls of the anticommunists among us.

Given his endorsement of the compulsory and redistributive nature of the mandate, however, it is unlikely that Tribe would deny the accuracy of the label “Marxist” or, for that matter, be offended by it. To expect either outcome would insult his intellectual honesty and integrity.

The annoying aspect of this second point is that, by cloaking the mandate’s naked Marxist core in vague language, Tribe may have been trying to strengthen his argument. A strong argument does not need camouflage.

The third point is in the last part of paragraph six, where Tribe neatly summarizes a set of premises and conclusions that is widely held to be true, but isn’t:

"Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation."

Consider the case of Mr. A, who has studied the actuarial tables and discovered that the only insurance he would be allowed to buy is priced according to the risk factors of people who almost certainly will have medical expenses many times as costly as his. He has saved enough money so he could afford to buy that insurance, if he wanted to, but he realized that actuarially it would be cheaper for him to pay his own medical bills out of pocket. In fact, he has saved enough money so he could afford to pay even catastrophic medical bills, if it came to that. Mr. A has chosen not to buy the insurance offered because, for him, it is not a good deal. He has chosen to self-insure.

So, while Mr. A did not purchase insurance he could afford, he has not “made a choice to take a free ride on the health care system.” Mr. A can and doespay for emergency room visits in full upon receipt of the bill. Unlike people covered by Medicaid, who really are taking a “free ride,” he has never asked the public or anyone else to pick up the tab, and never will. Mr. A’s “conscious choice” to self-insure carries “serious consequences for the national health care market” only to the extent that the government, having spent itself into a yawning sinkhole of debt, and finding voters reluctant to pay higher taxes, has passed a law that would strongarm Mr. A into picking up the tab not only for himself, as he has been all along, but for others as well.

That Tribe did not take into account those who choose to responsibly self-insure is odd. Surely he knows people who are successful, self-reliant, and self-insured. But whatever his reason, half-truths were used to reach a conclusion that as a result is, at best, 50% nonsense.

Fourth, and finally, in the seventh paragraph, Tribe tries to demonstrate that the constitutionality of the mandate does not depend on the commerce clause:

"Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out."

Let’s see. If the commerce clause, even in its broadest interpretation, fails to persuade a majority of the Court that the mandate is constitutional, the fact that the new healthcare law levies a fine on those who fail to comply with the mandate creates an opening. Because the law names the IRS as the collection agent for the fine, that fine takes on the coloration of taxation. Therefore (if therefore is not too strong a word in this line of reasoning), the Court can conclude that the individual mandate is constitutional because Congress is simply exercising its power to tax.

If all Congress has to do to make a law constitutional is to impose a fine for failure to comply and make the IRS the bill collector, then Congress can constitutionally make anyone do anything it wants.

Note that Tribe does not argue that the individual mandate itself is a form of taxation, but that it is “enforced through taxation.” He cannot claim that the mandate is a tax because the money is passed directly from the hands of the private citizen into the maw of the private insurance corporation. The government only oversees this unfunded individual mandate. So Tribe must be content to say that the fine itself is a tax.

Is it really that simple? If all Congress has to do to make a law constitutional is to impose a fine for failure to comply with that law, and make the IRS the bill collector so that the fine can be called a tax, then Congress can constitutionally make anyone do anything it wants by tacking a fine onto not doing it. That can’t be right.

Let us say that a law is passed that compels all obese people to lose a certain portion of their weight annually until a desirable target weight is achieved. Even though the massive weight-loss industry crosses state lines, and eliminating the scourge of obesity would benefit the national economy, an unimaginative Supreme Court stubbornly maintains that the government does not have the power to force people to lose weight. But then it is brought to the Court’s attention that the law imposes a small fine, payable to the IRS, on obese citizens who fail to meet their federally mandated weight-loss targets. Does the Court have no choice but meekly to acquiesce and uphold the law as constitutional?

Is there a legal philosopher’s stone that transmutes fines into taxes and through this magic transforms otherwise unconstitutional laws into models of constitutional compliance? Or is this an example of a more subtle proposition, “When I use a word, it means just what I choose it to mean, neither more nor less” (Dumpty, Humpty, Through the Looking Glass).

Even if either the mandate or the fine were a tax, the resulting legal axiom still wouldn’t pass the sniff test: “It is taxed, therefore, it is constitutional.” Deep in the penumbra of the Constitution that may not look like nonsense, but here on the sunny side, it certainly does. It sounds like the Red Queen channeling Descartes and Tribe simultaneously.

The fact that the Congress has the constitutional power to tax surely cannot mean that anything it chooses to tax is, as a result, constitutional. The argument begs the question. The fact that a fine is attached to the mandate does not make it constitutional.

The Times piece leaves the impression that Tribe has not given the problem of the individual mandate his full attention, which is understandable, given that his specialty is the law, not medicine, insurance, or economics. Besides, as a tenured professor at Harvard, he probably has essentially free healthcare for life as an untaxed benefit, making any concern that he has about the unfunded mandate entirely academic.

To say that “justice will prevail” if the Court upholds the mandate is easy for Tribe.He will not be asked to sacrifice anything at all, while others, many of more modest means, will be compelled to pay thousands of after-tax dollars per year to cover someone else’s higher risks.

To put this in another way, Laurence Tribe will not be picking up the tab when the Harley goes skittering across the freeway; others will.

And where is the justice in that?

***

In his 2008 book, The Invisible Constitution, Tribe explains the futility of relying on the text of the Constitution to resolve constitutional questions. He tells of what he calls the “dark matter” in the “shadow constitution” and the “ocean of ideas, propositions, recovered memories, and imagined experiences” that comprise the real mass of the “invisible” Constitution, which dwarfs the mere document. (One good review is: The Dark Matter of Our Cherished Document: What you see in the Constitution isn't what you get,Dahlia Lithwick, in Slate,Nov. 17, 2008)

If the written text of the Constitution, and its accompanying case law, which everyone can read and compare notes on, is but the tip of the iceberg, and the real mass is hidden below, in the ocean of collective consciousness, imagination, memory, or even the collective unconscious, then its truths can only be accurately interpreted by initiates specially trained to dive beneath the surface like cormorants to fathom and retrieve its complex meanings. Or, to switch metaphors, perhaps this Constitution is an ethereal entity whose cryptic messages can be divined only by oracles who breathe the heady air found in the realm above the clouds of partisanship and bring down to us the purity of its truths without relying on an old scrap of parchment.

On May 4, 2009, Laurence Tribe wrote a letter to his star pupil, assessing potential nominees to the Supreme Court. In it, he sized up Sonia Sotomayor, then a Court of Appeals judge, advising President Obama that, “Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court . . .” Another of his former students, Ed Whalen, posted the letter on the website of the Ethics and Public Policy Center.

 

Perhaps this Constitution is an ethereal entity whose cryptic messages can be divined only by oracles who breathe the heady air found in the realm above the clouds of partisanship.

To interpret this letter, Sonia Sotomayor, who studied law at Yale, not Harvard, might want to take a page from The Invisible Constitution and acknowledge the futility of relying on the rows of tiny symbols strung haphazardly together that constitute the actual text. There is so much more dark matter between the lines and in the murky ocean upon which such a letter floats.

The now Associate Justice Sotomayor may be comforted if she peers into the dark waters and discerns the outline of a psychological defense mechanism, first proposed by Freud, and called projection. A person who uses this tool unconsciously denies his own negative attributes and projects them onto others. This reduces his anxiety by allowing the expression of unconscious fears and desires without letting the conscious mind recognize them as his own.

Some of the people who say that the Constitution is “living” or “invisible” become judges so they can creatively distort the parts they disagree with from the bench. They are judicial activists posing as unbiased judges. Others work from the sidelines to bend and twist those parts so that the Constitution may be forged into a weapon that adds fire power to liberal impulses in the ongoing ideological battle. These are not legal analysts; they are merely political actors striking unconvincing poses of objectivity.




Share This
Syndicate content

© Copyright 2017 Liberty Foundation. All rights reserved.



Opinions expressed in Liberty are those of the authors and not necessarily those of the Liberty Foundation.

All letters to the editor are assumed to be for publication unless otherwise indicated.